I. Introduction: The Rise of State-Level Junk Fee Enforcement
The national conversation about so-called junk fees — charges hidden until the final stage of a consumer transaction — has accelerated dramatically over the past three years. Federal regulatory efforts have stalled or been struck down. Most notably, on July 8, 2025, just days before a scheduled compliance deadline, the Eighth Circuit vacated the Federal Trade Commission’s (FTC) sweeping amendment to its Negative Option Rule on procedural grounds.[1]
With federal rulemaking constrained, states have become the primary regulators. California’s Honest Pricing Act took effect July 1, 2024; Minnesota’s comparable all-in pricing requirements followed January 1, 2025; and the Massachusetts attorney general’s (AG) Unfair and Deceptive Fees regulation took effect September 2, 2025. Meanwhile, consumer plaintiffs have filed putative class actions against Major League Baseball (MLB) clubs, including the San Francisco Giants and the Boston Red Sox, bringing junk fee litigation to the sports and live entertainment industries.
This article surveys the regulatory and enforcement landscape: the substantive requirements of the new Massachusetts regulation,[2] with particular focus on its disclosure standards and their relationship to the AG’s longstanding retail advertising standard[3]; the posture of the Giants and Red Sox cases; the significance of the Eighth Circuit’s “Click to Cancel” Rule decision; and forward-looking enforcement and litigation risks for businesses likely to be scrutinized by regulators and state AGs.
II. Massachusetts’ New Junk Fee Framework
The Massachusetts regulation establishes enforceable standards against unfair and deceptive fee practices in connection with the advertising, marketing, solicitation, and sale of products to Massachusetts consumers. Violations constitute unfair or deceptive acts or practices under the Massachusetts Consumer Protection Act[4] meaning they are privately actionable and may also be pursued by the Massachusetts AG.
Section 38.04 bars sellers from misrepresenting or failing to disclose “clearly and conspicuously” the total price — the maximum amount a consumer must pay, including mandatory fees and charges other than government and shipping charges — at the initial and subsequent price presentations. Sellers must disclose the nature, purpose, and amount of all fees; identify optional or waivable fees and explain how to avoid them; and disclose the final transaction amount before sale. No pricing information may appear more prominently than the total price, except that the final transaction amount takes precedence at the final presentation.[5]
Section 38.05 addresses recurring billing and trial offers. For any trial offer, sellers must “clearly and conspicuously” disclose in writing, before the consumer accepts, the financial obligations that may follow, the identity of all products to which those obligations attach, the cancellation mechanism, and the specific calendar dates by which cancellation must occur to avoid charges. For any product with a negative option feature — automatic renewals, continuity plans, and free-to-pay conversions —sellers must disclose in writing that recurring charges will apply, together with a “simple mechanism” for cancellation that must be at least as easy to use as the method by which the consumer initiated the subscription. For subscriptions exceeding 31 days, sellers must provide advance written notice, no more than 30 and no fewer than five calendar days before the cancellation deadline, disclosing the upcoming charge, the cancellation mechanism, and the relevant dates. Notice must be delivered through a medium substantially similar to that used to initiate the subscription, or through a commonly used medium affirmatively chosen by the consumer as their preferred contact method.
III. The New Disclosure Standard
The existing Massachusetts retail advertising standard defines “clear and conspicuous” disclosure as a representation of sufficient size, color, contrast, or audibility to be readily noticed and understood by a reasonable person.[6] It sets medium-specific floors: at least eight-point type, or bold six-point modifying type, for print; adequate volume and speed without distracting sounds for audio; and contrasting color with at least three seconds of screen time for video. This approach has long served as a baseline for multiple AG regulations.
By contrast, the new “clearly and conspicuously” definition imposes mandatory cross-medium and contextual requirements that are either broader than, or have no counterpart in, the earlier retail advertising regulation:
- Simultaneous dual-medium disclosure: In any communication using both visual and audible means, e.g., a television advertisement, the disclosure must appear simultaneously in both the visual and audible portions, even if the underlying representation requiring the disclosure appears in only one medium.
- Multilingual requirement: Disclosures must appear in each language in which the primary representation requiring them appears.
- Targeted audience provision: Where a sales practice targets a specific audience, e.g., children, older adults, the “ordinary consumers” comprehension standard must be satisfied for a general audience and the targeted group.
- Anti-contradiction: Disclosures must not be “contradicted or mitigated by, or inconsistent with, anything else in the communication.” This standard reaches any inconsistency anywhere in the communication and is thus broader than the pre-existing prohibition on asterisked footnotes that contradict the primary claim, which is limited to specific, set-apart disclosures.
A business whose fee disclosures comfortably cleared the older “clear and conspicuous” threshold by displaying fees in adequately sized type accessible via a hyperlink before checkout may violate the new requirement to “clearly and conspicuously” disclose total price and negative option features under the new regulation if those disclosures are not unavoidable, appear in only one medium in a dual-medium communication, or are undermined by surrounding visual elements that divert consumer attention.
IV. The Giants and Red Sox Litigation: A Case Study in Drip Pricing Theories
The pending MLB junk fee class actions illustrate how plaintiffs are applying regulatory concepts to private litigation.
The complaint in the San Francisco Giants case alleges that the Giants violated California’s Consumers Legal Remedies Act (CLRA), Unfair Competition Law (UCL), and False Advertising Law (FAL) by advertising tickets at a “starting at” price and then disclosing mandatory service and processing fees at the final checkout page.[7]
The plaintiff alleges that in March 2024, shortly before the California law took effect, he selected two $10 tickets but paid $29 after a $5.50 “convenience” fee and $3.50 “order” processing fee appeared at checkout. The Giants moved to compel individual arbitration and to dismiss, relying on their Ticket Terms and Conditions’ arbitration clause and class action waiver. They also argue that the Honest Pricing Act does not apply retroactively and baseball tickets are not “goods or services” under the CLRA. Argument is scheduled for October 1.
The Red Sox case involves analogous claims under the Massachusetts Consumer Protection Act and Rhode Island’s Deceptive Trade Practices Act.[8] According to the putative class plaintiffs’ complaint, the Red Sox ticket online purchase screen displayed prices without mandatory fees during seat selection. Then, at the final checkout page, the website allegedly displayed “Per-Ticket Fees” (ranging from $0.50 to $8.50) and “Order Fees” (typically $7.00 per order regardless of ticket price or quantity) accompanied by a countdown timer of just five minutes within which consumers were required to enter payment information, review multiple sets of terms and conditions, and finalize their purchase. The Red Sox have moved to compel arbitration under Major League Baseball’s Terms of Use and alternatively to dismiss. A hearing has not been scheduled.
V. The Eighth Circuit’s Negative Option Rule Vacatur and Its Implications
The Eighth Circuit’s decision in Custom Communications, Inc. v. Federal Trade Commission temporarily removed what would have been the most comprehensive federal framework for automatic renewals and negative option billing. The court did not reach whether the substantive requirements exceeded the FTC’s authority or were arbitrary and capricious. It held that the agency’s failure to conduct the preliminary regulatory analysis required by 15 U.S.C. § 57b-3(a)(1)(A) for a rule with projected annual effects exceeding $100 million required vacatur.[9]
Consequently, the “separate consent” requirement under the FTC’s “Click to Cancel” Rule — which would have required that consent to automatic-renewal terms be obtained separately from any other portion of the transaction — did not take effect, providing meaningful compliance relief.
For companies doing business in Massachusetts, however, the vacatur changes little. California’s automatic renewal law, similarly, was amended (effective July 1, 2025) to impose tighter affirmative consent requirements and more rigorous cancellation procedures.
Indeed, the patchwork compliance challenge for national businesses continues with the potentially pending enactment of the District of Columbia’s Enhancing Consumer Protection Procedures Act of 2025. Without a single federal standard, companies must account for differing state rules on price presentation, renewal consent, notices, cancellation, and enforcement.
VI. Forward-Looking Enforcement and Litigation Risk
Several elements of the Giants and Red Sox cases are addressed by the new Massachusetts regulation and signal where enforcement and class action activity may focus. Regulators and plaintiffs may examine whether the first displayed price includes every mandatory charge; optional fees are accurately identified with workable avoidance instructions; disclosures remain prominent across interfaces; and countdown timers or other design features impede a consumer’s understanding of the total cost. Subscription programs present additional risk when enrollment is easier than cancellation or reminder notices omit required information. Notably, an AG enforcement action for alleged violations typically requires no named plaintiff, no class representative, no arbitration agreement analysis, and no individualized proof of consumer reliance or injury.
VII. Conclusion
The Giants and Red Sox class actions show that plaintiffs’ counsel are already litigating drip pricing theories, while the Massachusetts regulation gives the AG and private litigants more detailed standards for testing consumer-facing practices. Businesses operating in Massachusetts, California, Minnesota, and other jurisdictions with drip pricing restrictions should review advertising, price displays, fee descriptions, subscription enrollment, renewal notices, and cancellation procedures as a connected consumer experience. A documented, cross-functional audit can help reduce enforcement exposure and prepare businesses for additional state requirements.
For questions about Massachusetts’ junk fee regulation, state AG enforcement, or related class action exposure, contact Clayton S. Friedman or another member of Troutman Pepper Locke’s State Attorneys General Practice Group.
[1] Custom Comms., Inc. v. Fed. Trade Comm’n, 142 F.4th 1060, 1065 (8th Cir. 2025) (vacating Negative Option Rule, 88 Fed. Reg. 24716, 24716 (proposed Apr. 24, 2023), commonly referred to as the “Click-to-Cancel Rule,” to be codified at 16 C.F.R. § 425, after concluding that the FTC’s rulemaking process was invalidated by the Commission’s failure to conduct a regulatory analysis required under the federal Administrative Procedure Act).
[2] 940 Mass. Code Regs. 38.00 et seq., available at: https://www.mass.gov/regulations/940-CMR-3800-unfair-and-deceptive-fees.
[3] 940 Mass. Code Regs. 6.00 et seq., available at: https://www.mass.gov/doc/940-cmr-6-retail-advertising/download.
[4] See Mass. Gen. Laws ch. 93A, § 2.
[5] The Massachusetts AG has promulgated guidance on the regulation’s exemptions and requirements, available at https://www.mass.gov/doc/guidance-with-respect-to-unfair-and-deceptive-fees-2026123/download.
[6] 940 Mass. Code Regs. 6.01.
[7] Doc. 1, Flores v. San Francisco Giants Baseball Club LLC, No. 3:26-cv-00849-VC (N.D. Cal.). The complaint acknowledges that the Giants “stopped charging undisclosed Junk fees” in July 2024. Id. ¶ 10.
[8] See Doc. 1, Campagna v. Boston Red Sox Baseball Club, L.P., No. 1:26-cv-10182-NMG (D. Mass.). The complaint, filed in January 2026, concerns alleged conduct occurring in 2022 and 2023, before the Massachusetts regulatory restrictions on Unfair and Deceptive Fees took effect, and does not cite the new regulation.
[9] FTC’s existing 1973 Negative Option Rule remains in effect, but it applies only to pre-notification negative option plans, e.g., product-of-the-month-club type arrangements. The FTC also retains enforcement authority under the Restore Online Shoppers’ Confidence Act, 15 U.S.C. §§ 8401–8405, and Section 5 of the FTC Act. Custom Communications has no effect on FTC’s Rule on Unfair or Deceptive Fees, which became effective March 12, 2025 and expressly designates “live-event tickets” as a covered good or service and prohibits hidden pricing by requiring businesses to disclose the total price of a ticket clearly and conspicuously whenever any price is offered, displayed, or advertised. See 16 C.F.R. §§ 464.1, 464.2.