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FTC “Dark Patterns” Theory Crosses Dangerous Constitutional Line, IAB Argues in Amicus Brief to Federal Court

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WASHINGTON, D.C. – Interactive Advertising Bureau (IAB) is challenging a Federal Trade Commission (FTC) complaint against Amazon in federal court, arguing the agency is seeking to “regulate and punish truthful statements made in advertising based on what the FTC calls ‘dark patterns’… merely a series of normal and lawful business practices cobbled together and grouped under ominous buzzwords.”

Broadly defending advertisers and marketers, IAB asserts in its amicus brief that a ruling in favor of the FTC could give the agency nearly unlimited authority to police commercial speech that is neither deceptive nor misleading – the legal standard for penalties.

“What the FTC is actually alleging is that consumers were convinced by an advertiser’s accurate description of a program’s benefits,” according to IAB. In addition to criminalizing effective language, the FTC’s theory of “dark patterns” could criminalize design elements such as size and color. Because they are standard and widespread, IAB notes the FTC employs the same marketing practices it alleges are violations of federal law.

IAB has previously challenged similar FTC rulemaking. In June, the trade association filed public comments disputing proposed rules for “negative options” that would mandate cumbersome online subscription practices. In both cases, IAB has defended the benefits of online marketing and advertising for U.S. consumers, as well as businesses.

About IAB
The Interactive Advertising Bureau empowers the media and marketing industries to thrive in the digital economy. Its membership comprises more than 700 leading media companies, brands, agencies, and the technology firms responsible for selling, delivering, and optimizing digital ad marketing campaigns. The trade group fields critical research on interactive advertising, while also educating brands, agencies, and the wider business community on the importance of digital marketing. In affiliation with the IAB Tech Lab, IAB develops technical standards and solutions. IAB is committed to professional development and elevating the knowledge, skills, expertise, and diversity of the workforce across the industry. Through the work of its public policy office in Washington, D.C., the trade association advocates for its members and promotes the value of the interactive advertising industry to legislators and policymakers. Founded in 1996, IAB is headquartered in New York City.

IAB Media Contacts
Kate Tumino / Brittany Tibaldi
212-896-1252 / 347-487-6794
[email protected]/ [email protected]