In a recent routine monitoring case, NAD examined The Wall Street Journal's subscription cancellation procedures. At issue was the WSJ's claim that subscribers could "cancel anytime." Interestingly, NAD also identified the following implied claim: "Consumers can cancel using the method with which they signed up (including online)." We'll come back to that.

At issue was the functionality for subscribers to cancel their subscriptions to the WSJ and whether that functionality provided a reasonable basis for WSJ's claim that consumers can "cancel anytime." Because NAD determined that "a claim that consumers can 'cancel anytime' reasonably conveyed the message that cancelling is easy," indeed as easy as subscribing, NAD determined that online cancellation functionality would be necessary to support the claim.

The Decision notes that during the course of the NAD proceedings, the WSJ completed its planned expansion of its cancellation procedures to allow for online cancellation. Although subscribers are presented with offers to keep their subscriptions (so-called save attempts), or to pause rather than cancel them entirely, the option to completely cancel is "clearly and conspicuously displayed." Accordingly, NAD found that the WSJ could substantiate its "cancel anytime" claim and its implied claim that consumers could cancel using the method they used to subscribed.

A determination that publishers and other marketers who allow consumers to purchase their products online should allow those consumers to cancel online too is not surprising, especially in the current climate: a growing number of states explicitly require an online cancellation option for online purchasers. The FTC too is moving in that direction; the proposed revisions to the negative option rule would require "click to cancel" functionality for online purchasers.

What's interesting, though, is how NAD got there. NAD's job is not to enforce negative option laws. So it couldn't just determine that WSJ should allow for online cancellation because state or federal laws or rules require that. However, it could — and did — construe an advertising claim in a way that reflects the current regulatory thinking on negative option functionality.

In truth, there is no intrinsic reason why a phone call to cancel couldn't be "easy." Except that it's often not, because many marketers have used the call to cancel as an upsell opportunity or, at a minimum, as a way to convince the consumer to stay. It is, in fact, the long history of some bad actors keeping their consumers on the phone for hours, giving them the round-around, and making it very hard for them to cancel that led to the regulatory focus in this area, and all the new and revised laws.

Thus, for NAD to determine that consumers could interpret a claim of "cancel anytime" as meaning "cancel easily" or even "cancel in the same way you subscribed" is not particularly surprising, even if the plain meaning of those words is not about method or ease.

NAD/CARU Case Reports, Report # 7179 (July 2023)

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