Earlier this month, the FTC took another step toward issuing a new Negative Option Rule. We say a “new” version of the rule because the previous one, commonly called the Click to Cancel Rule, was vacated by the Eighth Circuit in July 2025. Despite that setback, recent events show the FTC intends to continue its push for a new rule in this area. On Jan. 30, it issued a draft Advance Notice of Proposed Rulemaking (ANPRM) to the Office of Information and Regulatory Affairs. On March 11, it posted that ANPRM to the Federal Register. The FTC is accepting comments on the ANPRM until April 13.
If you’re considering submitting a comment, then you likely want to know what’s in the ANPRM. Notably, this is not the Notice of Proposed Rulemaking, which would include the proposed rule. That will come at a later stage after the FTC considers these comments. The ANPRM instead includes an overview of the FTC’s negative option regulation, an explanation of why a new rule is required and questions it is seeking comment on to help guide the formulation of that new rule.
Reading between the lines, what the FTC is saying regarding the new rule matches the language it used for the previous one. Negative option regulation is currently spread across different legal frameworks, such as the Restore Online Shoppers Confidence Act and the Telemarketing Sales Rule, and requirements are not consistent. The new rule would apply different requirements across the board. The FTC believes a new approach is necessary because of the volume of complaints it receives in this area. The ANPRM states that those complaints have risen from 33 per day in 2020 to over 90 per day in 2025. It then expressly states that to address these issues, the FTC is considering “retaining the current Rule, adopting provisions of the Vacated Rule or some other provision, or implementing alternatives to regulation such as educating consumers and businesses on avoiding unlawful negative option practices.”
Reinstating the vacated rule is clearly on the table. And this time, the FTC would ensure the regulatory steps are all properly completed so that the rule won’t be vacated on the same grounds. The previous rule included several requirements that are not present in federal law today, the most notable being (1) consent to the negative option feature through a check box or similar mechanism, and (2) a “click to cancel” online option for all subscriptions entered into online. Businesses typically found these requirements burdensome; as part of the rulemaking process, the FTC is specifically asking for information on how this will affect industry. The ANPRM includes several detailed requests for information, such as the current costs for negative option compliance and how those will change if the FTC adopts the vacated rule. There are eight additional questions under that umbrella with more detailed inquiries on costs.
As the FTC notes in this release, in considering comments, economic evidence is likely to be particularly persuasive. This applies to evidence regarding potential harm to consumers, but the FTC also specifically asks about the potential costs to business. If you are considering submitting a comment, then supporting that submission with empirical evidence is key. There will be another opportunity to comment once the FTC publishes the Notice of Proposed Rulemaking, but, if possible, it’s helpful to flag any material considerations for the FTC now.
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