• by Wendy Davis  @wendyndavis, October 20, 2023

Amazon is urging a federal judge to throw out the Federal Trade Commission's charges that the company used so-called “dark patterns” to dupe people signing up for Prime subscriptions and thwart cancellation attempts.

In a motion filed with U.S. District Court John Chun in Seattle, Amazon says the FTC's claims rely on “vague and undefined concepts such as 'visual imbalances' and 'manipulative design elements.'”

“In a case supposedly about clarity, the FTC’s purported standards are unconstitutionally opaque,” Amazon writes.

“What font size and colors are required to comply with the FTC’s view of 'balance'? How many clicks on a website is too many for the FTC?” the company continues. “What amount of persuasive messaging does the FTC consider lawful marketing and what amount does the FTC deem unlawful 'manipulation'? The FTC does not even endeavor to answer such questions.”

The company adds that allegations regarding "manipulative" designs implicate all marketing.

“A primary function of any commercial advertising is to persuade consumers to purchase the products advertised -- often through strategically placed textual and visual displays or attention-grabbing fonts and colors,” Amazon writes.

“It is unclear how the FTC could ever draw a discernible line between supposedly unlawful 'dark patterns' and permissible run-of-the-mill advertisements,” Amazon adds.

The motion comes in response to a complaint filed in June by the FTC, which alleged that Amazon's supposed use of “dark patterns” violated the federal Restore Online Shopper Confidence Act, which imposes restrictions on companies that automatically renew consumers' subscriptions. Among other requirements, the Restore Online Shopper Confidence Act mandates that companies disclose all subscription terms in advance, and offer simple cancellation mechanisms. (The FTC last month filed a separate lawsuit accusing Amazon of antitrust violations.)

The case brought in June centers on Amazon's marketing efforts to attract and retain Prime subscribers. The service costs around $15 a month (or $139 a year for people who pay annually), and offers subscribers discounts, free delivery of many items, access to streaming video through Prime Video and other benefits.

The FTC wrote in its complaint that Amazon used “manipulative, coercive, or deceptive user-interface designs known as 'dark patterns' to trick consumers into enrolling in automatically-renewing Prime subscriptions.”

Portions of the FTC's complaint were filed under seal, but many of the public allegations centered on the site's design.

For instance, the agency alleged that Amazon's interfaces required shoppers to say whether they will enroll in Prime before completing a purchase. While Amazon allows consumers to decline enrollment, that choice is “less prominent” than the enrollment option, the FTC alleged.

“Since at least 2018, Amazon has known that some consumers cannot find the less prominent 'No Thank You' link to decline enrollment,” the FTC wrote in its complaint.

The agency also said Amazon “knowingly complicated” the Prime cancellation process.

Amazon argues that none of those allegations, if proven true, would show that the company deceived users or violated any laws.

"The FTC does not and cannot allege that Amazon made any false statements or concealed any material information," Amazon writes.

The FTC's lawsuit came around two years after consumer advocacy groups including Public Citizen, Fairplay, Center for Digital Democracy and others asked the FTC to investigate Amazon. Those groups drew on a report issued by the Norwegian Consumer Council (a watchdog funded by the Norwegian government), which said that subscribers who wish to cancel Prime memberships “are faced with a large number of hurdles, including complicated navigation menus, skewed wording, confusing choices, and repeated nudging.”