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HOUSE DOCKET, NO. 545 FILED ON: 1/13/2023
HOUSE . . . . . . . . . . . . . . . No. 326
The Commonwealth of Massachusetts
_________________
PRESENTED BY:
Steven S. Howitt
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act to prohibit negative option sales and disclosure of financial and personal information
without a consumer’s express agreement.
_______________
PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:Steven S. Howitt4th Bristol1/11/2023 1 of 6
HOUSE DOCKET, NO. 545 FILED ON: 1/13/2023
HOUSE . . . . . . . . . . . . . . . No. 326
By Representative Howitt of Seekonk, a petition (accompanied by bill, House, No. 326) of
Steven S. Howitt for legislation to prevent the automatic signing up of consumers for products or
services. Consumer Protection and Professional Licensure.
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 396 OF 2021-2022.]
The Commonwealth of Massachusetts
_______________
In the One Hundred and Ninety-Third General Court
(2023-2024)
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An Act to prohibit negative option sales and disclosure of financial and personal information
without a consumer’s express agreement.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 Section 1. Chapter 93 of the General Laws, as appearing in the 2016 official edition is
2hereby amended by inserting after Section 114, the following 3 new sections:-
3 “Section 115. Definitions
4 As used in sections 115 to 117, inclusive, the following words shall, unless the context
5clearly requires otherwise, have the following meanings:-
6 a) ‘Seller,’ any person, firm, corporation, partnership, unincorporated association,
7franchise, franchisor, or other business enterprise which promotes or exchanges goods or
8services for money 2 of 6
9 b) ‘Trial offer,’ an offer to a consumer by a seller for products or services without
10cost, at a reduced cost, for a rebate, for only incidental costs such as shipping fees or for a time-
11limited trial period under which the consumer is required to act affirmatively to avoid incurring a
12future financial obligation as a result of accepting the offer
13 c) ‘Consumer,’ any person who seeks to accept or accepts a trial offer
14 d) ‘Clear and conspicuous,’ (including the terms clearly and conspicuously), the
15material representation being disclosed is of such size, color, contrast or audibility and is so
16presented as to be readily noticed and understood by a reasonable person to whom it is being
17disclosed
18 e) ‘Affirmative Consent,’ a consumer’s express agreement to incur a clearly and
19conspicuously disclosed financial obligation as a result of accepting a trial offer; such agreement
20shall be made in a manner specifically identified for the consumer to indicate the consumer’s
21express agreement to incur the clearly and conspicuously disclosed financial obligation
22 f) ‘Financial Institution,’ an institution (public or private) that collects funds (from
23the public or other institutions) and invests them in financial assets
24 Section 116. Charges after a trial offer, required disclosures
25 a) Trial offer disclosures. A seller may not make a trial offer to a consumer, or
26impose a financial obligation on the consumer as a result of the consumer’s acceptance of a trial
27offer, unless: 3 of 6
28 i) The seller provides the consumer with clear and conspicuous information
29regarding the terms of the trial offer prior to the consumer’s acceptance of the offer, including, at
30a minimum:
31 1) Any additional financial obligations that may be incurred as a result of accepting
32the trial offer;
33 2) Identification of all goods or services, or enrollments in a membership,
34subscription or service contract that the consumer will receive or for which the consumer will
35incur a financial obligation as a result of accepting the trial offer;
36 3) The cost to the consumer of any financial obligation the consumer will incur if the
37consumer accepts the trial offer, including any fees or charges;
38 4) A statement, if applicable, that by accepting the trial offer, the consumer will
39become obligated for additional goods or services, or enrollment in a membership, subscription
40or service contract unless the consumer takes affirmative action to cancel the trial offer;
41 5) Instructions as to the means by which the consumer is to indicate the consumer’s
42rejection or cancellation of the offer;
43 6) The time period during which the consumer must cancel in order to avoid
44incurring a financial obligation as a result of accepting the trial offer; and
45 7) The calendar date on which the consumer will incur any additional financial
46obligation if the consumer fails to cancel the trial offer within the relevant time period.
47 b) Cancellation. A seller must inform the consumer, prior to the consumer’s
48acceptance of the trial offer, of the specific steps by which the consumer may cancel the 4 of 6
49agreement. The means for cancellation provided by the seller, shall at a minimum, enable the
50consumer to cancel the trial offer by calling a toll-free telephone number and, if the offer was not
51accepted by telephone, to cancel in a manner substantially similar to that by which the consumer
52accepted the trial offer, including but not limited to, electronic email address, website, postal
53address or another cost-effective, timely and easy-to-use mechanism for cancellation.
54 c) Affirmative consent. A seller may not impose a financial obligation on a
55consumer as a result of the consumer’s acceptance of a trial offer unless the seller has obtained
56the consumer’s affirmative consent to the terms of the trial offer set forth in subsection (a)(i) of
57this section.
58 d) Additional notice to consumer. A seller whose trial offer exceeds thirty (30)
59calendar days must provide additional notice to the consumer within no more than ten (10) and
60no fewer than five (5) calendar days prior to the date upon which the consumer will incur an
61additional financial obligation as a result of accepting the offer. The notification shall include
62the calendar date on which the consumer will be charged for additional goods or services or for
63automatic renewal. The notification shall be provided in a manner substantially similar to that by
64which the consumer accepted the trial offer and shall clearly and conspicuously disclose the
65means by which the consumer may cancel the offer. The means of cancellation must conform to
66subsection (b) of this section.
67 e) Burden on seller. The seller has the burden of proving that the consumer
68expressly agreed to this arrangement and that the required notices were provided within the time
69limits set forth. 5 of 6
70 f) “Data pass” prohibition. A seller may not cause a consumer to incur a financial
71obligation to another seller as a result of accepting a trial offer unless:
72 i) The consumer gives affirmative consent to the seller at the time the consumer
73accepts the trial offer allowing the seller to provide the consumer’s billing information to a seller
74other than the seller making the trial offer. Such affirmative consent shall conform to subsection
75(c) of this section.
76 g) Violation. Any violation of this section shall constitute an unfair or deceptive act
77or practice in violation of Chapter 93A.
78 Section 117. Prohibited Disclosures
79 (a) Disclosure of financial and personal information prohibited
80 Except as otherwise expressly provided in this chapter, a financial institution, its officers,
81employees, agents and directors shall not disclose any financial or personal information relating
82to a customer. Financial institutions shall adopt reasonable procedures to assure compliance with
83this subchapter.
84 (b) Exceptions
85 This section does not prohibit any of the activities listed in this subsection. This
86subsection shall not be construed to require any financial institution to make any disclosure not
87otherwise required by law. This subsection shall not be construed to require or encourage any
88financial institution to alter any procedures or practices not inconsistent with this section. This
89subsection shall not be construed to expand or create any authority in any person or entity other
90than a financial institution. 6 of 6
91 (1) Disclosure of information to the customer after proper identification.
92 (2) Disclosure authorized by the customer, provided the disclosure is limited to the scope
93and purpose that the customer authorizes.
94 (c) Violations
95 A financial institution who violates this section commits an unfair and deceptive act and a
96violation of chapter 93A.