FTC’s Using Bait-and-Switch Tactics With “Dark Patterns” Accusations, Says ITIF

WASHINGTON—In response to the FTC announcing it is taking action against Amazon for allegedly manipulating consumers into enrolling in its Amazon Prime service, ITIF Vice President Daniel Castro issued the following statement:

The FTC’s job is to enforce existing laws, not make up new ones to meet the whims of its commissioners. There is no federal law on “dark patterns,” yet the FTC continues to accuse companies of violating this unwritten rule in an effort to regulate the design of online services. All online sellers must adhere to the Restore Online Shoppers’ Confidence Act (ROSCA), which prevents sellers from engaging in certain unfair practices, and if Amazon or any other company violates this law, the FTC can and should hold them accountable. But in this case, the FTC seems primarily concerned with accusing Amazon of violating its ill-defined objections to “dark patterns”—a vague term it uses to describe any user interface design that it believes manipulates consumers.

The FTC keeps claiming companies are engaging in dark patterns because it never has to substantiate these claims. These claims are entirely subjective, which makes disapproving the accusations nearly impossible for companies. After all, almost any design decision can be construed as manipulating consumers, such as the size or color of a button on a website, and while some sites might have poor design, that poor design is not always criminal.

And even when the design is intentional, it is not always nefarious. Indeed, it should come as no surprise that companies want consumers to buy their products: Grocery stores put candy at the checkout counter, auto dealers upsell extended warranties, and fast food restaurants offer to add drinks or a side to every order. Companies advertise to prospective customers. These may be manipulative practices, but they should not be illegal.

The FTC continues making these claims about dark patterns to perpetuate the fiction that the tech industry is using behavioral psychology to nefariously manipulate consumers into acting against their own interests. And this approach works because if a company settles a claim about ROSCA, the FTC will spin it as a victory against “dark patterns.” But that is nothing more than a bait-and-switch tactic—something that the FTC prohibits among sellers, and it should also avoid in its own policymaking.

For more on this issue, see:

• Daniel Castro, “The FTC’s Efforts to Label Practices “Dark Patterns” Is an Attempt at Regulatory Overreach That Will Ultimately Hurt Consumers” (ITIF, 2023)