My beef with “negative option” marketing

In a perfect world, advertising is simply the practice of making the public aware of a product or service being sold. This practice is important in that it helps make a business, manufacturer, or other peddler of goods or services successful by explaining the benefits to the product or service, and helping to bring together merchants and consumers for mutual benefit.

Advertising has grown and changed through the past several decades, though. Modern advertising no longer simply informs the public of potentially valuable products and services, bringing merchants and the public together for mutual benefit; instead, corporations and big business strive to flood the airwaves, print media, radio, and other physical public spaces with over-the-top messages, most stretching or simply lacking in truth altogether, in an attempt to deceive the public into believing that they need the merchant’s product or service, whether they really do or not. Cheap marketing ploys are often used as well, playing off of tired or harmful gender stereotypes and expectations, exploiting human emotions, and using sex to sell everything from beer to fast food hamburgers.

With little useful regulation imposed on corporations and other businesses regarding what they are allowed to tell the public about their products and services, the public is left with little with which to judge the safety and efficacy of what they’re buying. Furthermore, safety or efficacy aside, many companies are using other methods to ensure that their products are sold, without bothering to ensure that consumers actually want it, by jumping on the “negative option” bandwagon. The negative option means that a merchant can advertise their product by offering a “free” trial, or allowing the consumer to sign up for a sample of a product and “only” paying shipping and handling, or some other small fee, while they see if they like the product. What ends up happening, a few days or weeks later, is the customer’s credit or debit card is charged for more products or services from the same company that they not not expressly ask to receive or be charged for, because they failed to cancel the subscription that they didn’t know they were being signed up for in the first place. As Mark Huffman of wrote (it’s a few years old, but still depressingly relevant):

Simply put, negative option turns the sales transaction around. Instead of the merchant having to “sell” you a product or service, it starts with the assumption that you’ve already bought it. It’s up to you, the consumer, to contact the merchant and cancel the order if you don’t want to complete the transaction.

In 2001, the Federal Trade Commission attempted cracking down on these companies, but to to avail. Huffman continues to explain that “…Congress took no action, and in the last four years, negative option marketing has increased, and so has its abuse.” The merchants participating in this type of deceptive marketing are, naturally, attempting to defend their shady business practices by pretending that it’s really good for consumers:

…the Magazine Publishers of America, an industry trade association, says it prefers to call negative option marketing “advance consent marketing.” The group defends the practice, saying continuous service and automatic renewals also benefit consumers.

“Advance consent marketing”? Really? Because no, this isn’t “advance consent.” This is, at best, the flawed and often wrong assumption of consent; at worst (and at its most prevalent), it is the deliberate omission of facts and the nature of the business used to intentionally deceive consumers, and trick them into purchasing more of their products. Merchants such as these are required to inform consumers of the possibility of more charges if they don’t cancel, but they aren’t required to make this information obviously available. What they do instead is reduce the font size as small as they can get away with, and shove any disclaimers or terms and conditions as low on the products website or other advertisement as possible. Some even go so far as to design the website so that the viewer of the website believes they are at the bottom of their webpage, when in reality, the terms and conditions explaining the possibility (or rather, inevitability) of future charges is below it, and ends up not being viewed at all. When the consumer later complains, they are told that it is their responsibility to read the terms and conditions and to agree to them prior to completing the “free trial” or “shipping and handling only” transaction, and that they therefore authorized the charge.

I deal with the negative effects of this type of advertising and marketing on a daily basis; it’s my day job. As many regular readers may already know, I work for a bank, where I resolve customer’s claims of fraudulent use of their ATM and debit cards. A great deal of the customer claims I’ve resolved are filed as a direct result of these marketing schemes. The most popular, by far, are for weight loss products, then at-home money-making “tips,” and “information” about government grants. These products are often marketed on fake blogs, complete with supposedly realistic-looking typos, and fake comments by fake consumers. The websites claim that the product is “miraculous” and “amazing,” and pretend to give real accounts of real people really using the product, and getting real results. If you’re savvy enough, you’ll notice at the very bottom of the page that all claims of product effectiveness are simply not to be believed (from one Acai peddler I found):

It is important to note that this blog and the story depicted above is to be used as an illustrative example of what some individuals have achieved with this/these products. This website, and any page on the website, is based loosely off a true story, but has been modified in multiple ways including, but not limited to: the story, the photos, and the comments. Thus, this blog, and any page on this website, are not to be taken literally or as a non-fiction story. This blog, and the results mentioned on this blog, although achievable for some, are not to be construed as the results that you may achieve on the same routine. I UNDERSTAND THIS WEBSITE IS ONLY ILLUSTRATIVE OF WHAT MIGHT BE ACHIEVABLE FROM USING THIS/THESE PRODUCTS, AND THAT THE STORY DEPICTED ABOVE IS NOT TO BE TAKEN LITERALLY.

Emphasis mine.

So, basically, the entire piece of advertising is modified and fictional. All of it. The content is, of course, written in order to convince readers that it isn’t made up. It’s deceptive, on purpose. It strives to trick consumers. And you’ll notice that at the top of the page, widely-recognized logos from trusted news corporations are shown in an attempt to trick the consumer into believing that this comes from a trusted source, when they are not, in reality, associated with any of these companies or organizations. For consumers who don’t look closely at these logo-placements and other information given, they are led, intentionally, to believe that the product being advertised is endorsed by trusted organizations. Other marketing schemes claiming to teach you how to use Google to become a millionaire operate similarly by pretending to be associated with Google, when they do not, in fact, have anything to do with Google. Many of these merchants, in their terms and conditions, will also spell numbers and dollar amounts indicating the price the consumer will be charged if they don’t cancel within a certain time, like “eighty nine dollars” rather than “$89.00,” in order to further attempt to hide the information from consumers.

Why, exactly, is this allowed? Because big business lobbyists throw enough money at politicians to vote against consumer protection measures that would force businesses to be truthful in their marketing practices. They know, of course, that if they were truthful in their advertising, then they wouldn’t make nearly as much money. And as long as they’ve got the information somewhere on the page, they can cite “consumer responsibility” and claim no liability for lack of understanding of the merchant’s products and business practices.

Obviously, if a product is as useful and amazing as the merchant claims it to be, none of this deception would be necessary. Unfortunately, though, current laws ensure that merchants are allowed to exaggerate the efficacy of their products and stretch the truth, and even outright lie, about the effects of their products, because they have some kind of “right” to make money by whatever means deemed necessary by the merchants. There is no reason why this should be allowed, and while consumers have a responsibility to know what they’re buying, merchants should never have the right take advantage of this responsibility by playing into the knowledge that most consumers will not search high and low for small-font disclaimers.

We need to stop treating businesses as though they are more important than people. Corporations “right” to deceive the public for the sole purpose of padding their bank accounts needs to be put in check. We’re long overdue for reform.

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2 Responses to My beef with “negative option” marketing

  1. Quercki says:

    Perhaps we need a “Yes means yes” campaign for consumer purchases as well?

  2. Aspiring art director/advertiser with a undergrad degree in Philosophy. Would love to concept with you on some ethical ads. You will receive full credit of the end result of the campaign, and help revolutionize advertising.

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