• by Wendy Davis  @wendyndavis, December 11, 2023

The Federal Trade Commission's case against Amazon over its supposed use of “dark patterns” to market Prime relies on “newly invented hyper-technical rules,” the company argues in court papers filed late last week.

“Amazon 'clearly and conspicuously' disclosed Prime’s material terms,” the company says in papers filed with U.S. District Court Judge John Chun in Seattle.

“The FTC argues that Prime’s disclosures are inconspicuous not because of their words or presentation, but instead because the 'context' makes it unlikely consumers will read them,” Amazon adds. “This argument is untethered from the objective review prescribed by law.”

The company's papers come in a battle dating to June, when the FTC claimed Amazon used “manipulative, coercive, or deceptive user-interface designs” to trick consumers into subscribing to the $15-a-month Prime, which offers discounts, free delivery of many items, and access to streaming video through Prime Video. The FTC also alleged that Amazon hindered Prime cancelation attempts by making the process too complicated.

The complaint included a claim that Amazon violated the Restore Online Shopper Confidence Act -- which requires companies to disclose all subscription terms in advance, and offer simple cancellation mechanisms.

In October, Amazon urged Chun to throw out the complaint, arguing that the FTC's charges relied on “vague and undefined concepts,” such as “manipulative design elements.”

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

“What font size and colors are required to comply with the FTC’s view of 'balance'?” Amazon continued. “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 FTC opposed Amazon's request for a fast dismissal, arguing that the complaint “plausibly alleges many ordinary customers would neither see nor understand Prime’s price and auto-renewal terms or, in some cases, that they are enrolling in Prime at all.”

The agency added that key terms were “presented in small print, below (sometimes far below) the enrollment button, often starting on the opposite side of the page as the button, and overshadowed by marketing text and graphics on the page.”

But Amazon counters in its new papers that judges in other cases have approved of the same language it uses, as well as disclosures made in similar fonts and near the bottom of a webpage.

“These cases expose the FTC’s opposition arguments for what they are: subjective critiques and attempts to impose unpromulgated rules,” the company contends.

Several outside groups including the Interactive Advertising Bureau have sided with Amazon in the dispute.

That organization argued in a friend-of-the-court brief that the FTC's complaint amounts to an attempt “to regulate and punish truthful statements made in advertising,” and that some of the agency's claims deal with everyday marketing practices.