Dark patterns: urgency, hidden fees and the FTC Act

The rule

The United States has no single dark-patterns statute. The FTC reaches design tricks through the general prohibition in Section 5 of the FTC Act and, for tickets and short-term lodging, through one specific rule. The rule that matters most for a website is the general one.

In September 2022 FTC staff published Bringing Dark Patterns to Light. It is a staff report, not a rule, and it explains how the agency reads Section 5 online. It describes “Deceptive” practices, citing the FTC’s Deception Policy Statement, as involving a material representation, omission or practice that is likely to mislead a consumer acting reasonably under the circumstances, and says companies “are on the hook for the net impression conveyed by the various design elements of their websites, not just the veracity of certain words in isolation.”

There is one specific rule. The Rule on Unfair or Deceptive Fees, 16 C.F.R. Part 464, took effect on May 12, 2025. The FTC says it applies to live-event tickets and short-term lodging only, and requires businesses that advertise those prices to show the total price, including mandatory charges, more prominently than other pricing information. For ordinary e-commerce there is no equivalent rule, so hidden charges are judged under Section 5.

Penalties follow a different path from the rule itself. Section 5(m)(1)(A) lets the FTC bring a civil action for a civil penalty against anyone who breaks a rule respecting unfair or deceptive acts or practices. The FTC’s fees-rule FAQ says that a business that breaks a Trade Regulation Rule could be ordered to comply, refund money and pay civil penalties. The settlements below came as orders with refunds. For subscription and cancellation findings, see US-09.

What PeekWell checks and how

US-08 asks whether the signs of urgency and the way a price is shown hold up when looked at twice from outside. The method is the same as for EU-12 and UK-14; each of those articles states its own jurisdiction’s rule and cases.

The scan loads a public page in a clean browser, records countdown timers and “only N left” counters, then reloads and compares the values. It also notes “N people are viewing” widgets it finds. A timer that returns to the same starting point, or a counter identical across fresh sessions, becomes an observation with both readings. For pricing and consent wording, the scan reads the copy on the public pages it visited for signs that mandatory charges are mentioned apart from the headline price, or that consent is steered. A language model does that reading, and the result is worded as a signal, never as a finding that a charge is hidden. Code decides the reload comparison.

The scan has limits, and the report says so. It sees the public pages it visited and nothing behind a sign-in. It does not submit forms, add items to a basket, test passwords or open addresses nobody linked to. It cannot reach the checkout, where a fee that first appears at the last screen would be seen, so only the signs on public pages are recorded. It cannot see real stock or your promotion calendar. A Passed means the expected behaviour was observed on the pages scanned. It does not say the site complies.

Why it matters for a company

The FTC’s own taxonomy is the list an investigator starts from, and its cases show the cost. In December 2022 it announced settlements with Epic Games, including an administrative order with $245 million in refunds for what the agency described as dark patterns and unauthorized billing in Fortnite. The FTC alleged confusing button configurations that led to unintended purchases, charges triggered while the game was asleep or loading, and obscured cancel and refund features. The $245 million was refunds under an administrative order. The same announcement also covered a separate $275 million civil penalty in a children’s privacy case, which is a different matter from the design-pattern findings.

A single dealership faced the same theory in August 2026. Chase Nissan LLC, a Connecticut car dealership, agreed to a proposed order, filed in the U.S. District Court for the District of Connecticut, under which defendants pay $4 million in consumer redress over fees and add-ons that the Connecticut Attorney General’s office said were unauthorized or inserted into financing without the customer’s knowledge. The proposed order requires the maximum total price to be the most prominent figure and express, informed consent for every charge. That case concerned a dealership, and the page does not describe a website, but it sets out the same two ideas a website check looks for: the whole price in front, and a customer’s agreement for each charge.

For a company, three things follow. The FTC reads the whole screen, so a disclaimer in small print may not answer a clock that implies a deadline. Money is usually returned to customers through orders, so the cost scales with how many people bought. And the staff report is a public list of the tricks it has in mind, so there is no need to guess.

Smaller companies and larger companies

Section 5 has no size threshold. The Epic and dealership settlements are different in scale and use the same statute.

In a small company the problem usually comes from a plugin or a template. A theme adds a “sale ends soon” banner with a countdown that loops, or a stock figure that is randomly generated, or a booking tool adds a service fee on the last screen. The owner sees the headline price and the offer and seldom walks the checkout as a customer. There may also be no one whose job is to ask whether a banner is true. The dealership matter shows that a single dealership is within reach.

In a larger company the pattern is several teams and many surfaces. A growth team tests interface variants for conversion, a pricing team sets fees, and an engineering team owns the checkout. A variant that wins on sales may be one that uses a countdown or hides a charge until the end. The FTC’s report asks that design choices be judged not only on sales and click-through but on whether they deceive.

How to fix it

The aim is that every deadline, counter and price on the page matches something true. These steps assume a developer with access to the templates and checkout.

1. List every urgency element. Search templates, plugins and the tag manager for timers, “only N left”, “N people are viewing” and “ends today” banners. Write down what each reads from.
2. Tie each timer to a stored end date. The clock should count down to a date held in the promotion record. When the date passes, the offer and the banner end together.
3. Do not loop a deadline. The FTC’s report describes a timer that “resets when it times out” as a baseless countdown. If an offer is extended, say so rather than restarting the clock.
4. Source every counter. Show stock from live inventory and show a “people are viewing” figure only if a real count sits behind it. Remove anything you cannot trace.
5. Show the whole price first. Put mandatory fees into the first price a visitor sees. Keep optional extras separate and unticked, and ask for a customer’s agreement for each one.
6. Re-scan. Reload the page several times in a private window and compare, then run a scan again. The observations should disappear once the values follow real dates and real stock.

// Only show a timer for an offer that has a real, stored end date
if (promo.endsAt && Date.now() < Date.parse(promo.endsAt)) {
  renderCountdown(Date.parse(promo.endsAt) - Date.now());
} else {
  hideTimerAndEndOffer();
}

Whether a given page meets Section 5 is a question for your legal adviser, and Peeky reports only what it sees.