The Massachusetts Attorney General’s Office (AGO) recently introduced new regulations, 940 CMR 38.00, addressing so-called “junk fees,” trial offers, subscriptions, and more. The regulations are effective beginning September 2, 2025 for businesses engaged in advertising, marketing, solicitation, or offering targeted to or resulting in a sale in Massachusetts, and violations will be considered unfair or deceptive acts under the state’s UDAP law, the Massachusetts Consumer Protection Law. In order to assist businesses in complying with the new regulations, the AGO has released guidance for businesses, available here.

Junk Fees. As we’ve written about many times in recent months (see, e.g., here and here), “junk fees,” which are hidden, surprise, or unnecessary costs that increase the total price of a product beyond the advertised price, have been a big focus of regulators, legislators and class action lawyers alike. The AGO expressed concern that businesses may fail to disclose these fees upfront, reveal them only at the final stages of a purchase, or wait until after consumers have entered their billing details to add them. Some highlights of the new MA regulations targeted to address this issue include:

• Price Transparency: Among other rules, the AGO’s regulations require businesses to clearly disclose: 
  • The total price of a product, including any mandatory charges or fees, whenever pricing information is presented to a consumer and prior to requiring a consumer to provide their personal information. 
  • The nature, purpose, and amount of any charges that may be imposed on a transaction.
  • Whether any charges are optional or waivable, along with readily available instructions on how to avoid any optional or waivable charges.
  • Whenever pricing information is presented to a consumer, businesses must also display the total price of a product more prominently than any other pricing information. 
• Exemptions: The regulations do not apply to:
  • Shipping fees and government-imposed charges when calculating the total price.
  • Food and grocery delivery platforms, as long as they clearly display maximum mandatory fees with pricing.
  • Rental agreements, provided the full lease period is disclosed upfront.
  • Certain regulated industries, including: 
  • Motor vehicle manufacturers and dealers
  • Health care providers
  • Creditors
  • Securities transactions
  • Air transportation

Auto-Renew Offers. Like the automatic renewal laws of other states, and the FTC’s Negative Option Rule, the new Massachusetts regulations reflect a concern that some businesses have implemented subscription and other negative option programs that “conceal the total cost and nature of a product or service” and make cancellation unduly difficult.

The new regulations cover the sale of all products or services that include a “Negative Option Feature,” including (1) an automatic renewal; (2) a continuity plan; (3) a free-to-pay conversion or fee-to-pay conversion; or (4) a pre-notification negative option plan. They address disclosures, cancellation procedures, notices and free trials. 

While much of what’s in the new regulations comports with the requirements of other strict state laws, like California’s, the notice requirements are novel and will require some planning for companies selling to Massachusetts residents.

• Disclosures: Prior to the consumer’s purchase, the company must disclose, clearly and conspicuously, (a) that the consumer will be charged for the product, or that charges will increase after any applicable trial period ends; (b) that the charges will occur on a recurring basis, unless the consumer timely takes steps to cancel; and (c) how to cancel. The regulations define “clearly and conspicuously” as requiring not only that the disclosure be noticeable and readily understandable and in the same means by which the communication is made, but also that, for any communication using an interactive electronic medium, such as through the Internet, a mobile application, or software, the disclosure must be unavoidable. 
• Free Trials: Prior to the consumer’s acceptance of the trial offer, the company must disclose what financial obligations the consumer will assume by accepting the trial offer, and for which products, how the consumer can cancel before the consumer assumes such financial obligations, the calendar date by which the consumer must act to cancel, and the calendar date on which the financial obligations will commence if the consumer does not cancel. 
• Cancellation: As in other jurisdictions, the cancellation method must be “simple” and “at least as easy to access and use as the method the consumer used to initiate the Negative Option Feature.” Also, it must “at a minimum, be available through the same medium (such as Internet, telephone, mail, or in person) the consumer used to initiate the Negative Option Feature.” In addition, the regulations include specific provisions for different types of cancellation. For internet cancellation, the simple mechanism must be available through the same website or web-based application the consumer used to sign up.
• For telephone cancellation, the simple mechanism must be available through a telephone number, and all calls to this number must be answered promptly during normal business hours and not be more costly than the telephone call the consumer used to sign up. The AGO’s guidance explains that a seller will not be automatically in violation of the regulation if the consumer calls to cancel and no one is available to take the call, so long as the seller provides an automated system that allows consumers to effectuate cancellation or includes an adequate voicemail system that identifies the information a consumer must provide in a voicemail left with the seller to effectuate cancellation. Finally, the regulations specify that, for in-person sales, the simple cancellation mechanism must be available through the Internet or through a telephone number in addition to, “where practical,” an in-person method.
• Notices. The regulations include different notice requirements based on whether the negative option plan is longer or shorter than 31 days (as determined by calculating the time interval between acceptance of a negative option feature and the date upon which a consumer must cancel to avoid incurring a charge). 
  • For those longer than 31 days, the seller must provide notice to the consumer between 5 and 30 days prior to the deadline by which the consumer must cancel to avoid further charges, and the notice must state that the consumer will be charged, and when, and how, and by when, the consumer can cancel to avoid being charged. Further, the notice must be made through a medium “substantially similar” to that used by the consumer to sign up, or through a “commonly-used medium that is reasonably calculated to be seen and understood by an ordinary consumer, and that is affirmatively chosen by the consumer to be their preferred method of contact.”
  • For those 31 days or shorter, the seller must provide all the same information described above for negative option plans longer than 31 days, or it must “disclose[] Clearly and Conspicuously, at least as frequently as the consumer is charged, the amount the consumer has been charged at autorenewal and instructions as to the mechanism by which the consumer may cancel the Negative Option Feature and avoid incurring additional charges…”  In other words, the seller must either send periodic notices in advance of renewal or when the consumer is charged. What this means is that for monthly subscriptions, sellers must send monthly notices, prior to or at the time it charges the consumer. Further, the seller must provide these notices in a medium substantially similar to that used by the consumer to sign up, or through a commonly-used medium that is reasonably calculated to be seen and understood by an ordinary consumer. 

These new regulations show, once again, that junk fees and subscription programs are a hot area for legislation and enforcement.