When Must an Optional Fee Be Included in the Total Price?
Calling a charge “optional” does not necessarily allow a business to exclude it from the advertised price. Massachusetts Attorney General guidance under 940 CMR 38.00 focuses on the customer’s actual choices and whether the advertised purchase is genuinely available at the stated amount.
A genuine choice can change the price
The guidance uses hotel bookings as an example. A hotel may advertise its lowest available room price before a guest selects optional features, provided the guest can actually book the advertised room at that price and the presentation is not misleading. Once the guest selects an extra feature, the total price must be updated.
A customer choosing an additional service is different from a business adding it automatically and requiring the customer to request removal. Optional or waivable fees also require clear information about their nature, purpose, amount, and how to avoid them.
Default charges and unavoidable payment fees
The guidance identifies default billing, pre-checked boxes, and opt-out practices as reasons a fee may effectively be built into a transaction. A charge automatically collected unless the customer notices and challenges it cannot simply be treated as optional.
It also identifies credit card processing fees when there is no other viable payment option as an example of an unavoidable fee that belongs in the total price. This is a disclosure example, not permission to impose card surcharges in every Massachusetts transaction. Separate laws may restrict whether a charge is lawful at all.
Charges needed for the product’s intended use
A fee must also be included when it is necessary to make the underlying good or service fit for its intended purpose and reasonable consumers would expect it to be part of the purchase. The guidance’s example is a hotel charging guests to use towels.
The definition of Total Price in 940 CMR 38.03 includes the words “inclusive of all fees, charges, or other expenses”. Government charges and shipping charges receive specific treatment under the regulation; those exceptions do not generally permit mandatory business charges to remain hidden until checkout.
Later conduct can be different
Fees triggered by a guest smoking in or damaging a hotel room are distinguished from charges required for an ordinary purchase. Because they depend on later conduct, the guidance does not require treating them as mandatory components of the initial total price. Other legal requirements may still govern the terms and collection of those charges.
Businesses should test the actual booking and checkout process, including default selections, payment paths, and price updates. Customers can preserve the advertisement, selected options, and final receipt. Whether a particular fee is lawful, unavoidable, or adequately disclosed can depend on special circumstances and should be assessed with an attorney.
Official materials
Legal Disclaimer. Originally published: 10/17/2026. This article provides general information only and is not legal advice for any particular matter. Laws, policies, procedures, fees and agency practices may change; their application depends on the facts and jurisdiction. Consult a qualified attorney about your circumstances before acting on this information. Reading this article or contacting Blumsack & Canzano does not, by itself, create an attorney-client relationship. Past results do not guarantee future outcomes. This material may be considered attorney advertising in some jurisdictions.
