Harvard Journal on Legislation
Preacquired account marketing is a sales practice that allows companies to charge consumers for services they do not know they ordered and do not use. The practice depends on a seller's ability to access a consumer's financial account without the consumer directly providing her account number and other access information to that seller. This flips the power dynamic in the solicitation process by shifting the burden to the consumer to stop the seller from accessing her account, rather than requiring the seller to ask the consumer for her account information before her account can be charged. This is possible because the seller has paid a financial institution, such as a bank, or another seller who retains consumer account numbers for the right to charge the consumer's account. Tens of millions of consumers have been affected by this sales practice. Many of these consumers have diminished mental capacity or struggle with the English language, making it more likely that they will not understand that they are being charged. This Article recommends that state legislatures or the United States Congress adopt the proposed Uniform Consumer Account Control Act, a total ban on preacquired account marketing. Prohibiting this form of marketing is conceptually less difficult than many other areas of consumer protection regulation because the regulatory costs in this situation are almost non-existent. A total ban forces sellers to actually reach an understanding with consumers. Experience has shown that lesser remedies, such as improved disclosures, are insufficient to control rampant consumer misunderstanding. They do not solve the fundamental problem of shifting control of account access from the consumer to the seller in a way that facilitates sorting of consumers into those unaware of account charges.
Prentiss Cox, The Invisible Hand of Preacquired Account Marketing, 47 Harv. J. on Legis. 425 (2010), available at http://scholarship.law.umn.edu/faculty_articles/276.