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As previously reported, the Massachusetts Attorney General’s Office introduced 940 CMR 38.00 that will go into effect September 2, 2025.  The purpose of 940 CMR 38.00 is to establish standards, by defining certain unfair and deceptive acts and practices, governing the imposition of fees in connection with marketing, solicitation, and sale of products including retail energy supplier services.

Among other things the regulation requires: (1) price transparency in any advertising, marketing, solicitation, or offer of sale, including “clearly and conspicuously” disclosing: (i) the product price at initial presentation; (ii) the total price at any subsequent presentation; (iii) at the initial and final presentations of the total price, “the nature, purpose, and amount of any fees, charges, or other expenses,” except shipping and government charges, and, if applicable, which expenses are optional or waivable and how to avoid those; and (iv) the total price “prior to requiring a consumer to provide any personal information, including billing information,” unless and only to the extent necessary to facilitate underwriting, determine availability, determine legality, or “compute an aspect of pricing previously approved by a Commonwealth insurance or financial regulatory agency”; (2) not “Misrepresenting that any fees, charges, or other expenses or any portion thereof are required by law”; and (3) displaying total price “more prominently than any other pricing information any time the disclosure of the Total Price is required, except for the final presentation… wherein the most prominent pricing information shall be the final transaction amount”; (4) for any trial offer, clearly and conspicuously disclosing in writing: (i) “any financial obligations that may be incurred,” for which products, and on what calendar date; and (ii) how and by what calendar date to cancel the trial offer before incurring financial obligation; (5) for any negative option feature (NOF), clearly and conspicuously disclosing: (i) “that the consumer will be charged… or that charges will increase” at the end of the trial period; (ii) “if applicable, that the charges will occur on a recurring basis”; and (iii) how to cancel the NOF; (6) provide a mechanism to cancel any NOF and avoid being charged or recurring charges that: (i) is “as easy to access and use as the method” to initiate the NOF”; (ii) if initiated online, is available through the same website or app; (iii) if initiated by phone, is available by a number where all calls are “answered promptly during normal business hours” and is no more costly than the initiating call; and(iv) for in-person sales, is available online or by phone as above; (7) for any NOF over 31 days, providing written notice five to 30 days prior to the cancellation date, “through a medium substantially similar to that used by the consumer to initiate” the NOF or a common medium “affirmatively chosen by the consumer to be their preferred method of contact”, that clearly and conspicuously discloses: (i) “any financial obligations that may be incurred if the consumer fails to cancel,” for which products, and on what date; and (ii) how to cancel and by what date; and (8) for any NOF of 31 days or less, providing written notice ”, either as required for longer NOFs or that clearly and conspicuously discloses “the amount the consumer has been charged at auto renewal” and how to cancel the NOF to avoid additional charges, as frequently as the customer is charged and “through a medium substantially similar to that used by the consumer to initiate” the NOF or a common medium “affirmatively chosen by the consumer to be their preferred method of contact.