Companies that operate e-commerce sites or mobile apps are likely familiar with an online design practice known as digital dark patterns. However, they may not be aware of the Federal Trade Commission (FTC)’s evolving position on such practices, certain of which the FTC has consistently found to be unlawful.. A recent FTC report on the subject (“FTC Report”) offers important insights on common digital dark pattern practices and warns that aggressive enforcement action is likely.

The COVID-19 Consumer Protection Act (COVID-19 Act) was passed last year to protect the public from deceptive marketing related to the treatment, cure, prevention, mitigation, or diagnosis of COVID–19, or any government benefit related to COVID-19, by making such practices illegal under the Federal Trade Commission Act (FTC Act). The COVID-19 Act also authorizes the Federal Trade Commission (FTC) to seek civil monetary penalties for first-time violations of the COVID-19 Act, a remedy not normally available under the FTC Act.