FTC Reopens Negative Option Rulemaking

The Federal Trade Commission (FTC) has once again announced that it is seeking public comment on ways to improve existing regulations for negative option programs, including the existing Negative Option Rule.

The FTC issued an Advance Notice of Proposed Rulemaking (ANPRM) seeking public input on these issues on March 11, 2026. The ANPRM is a request for comment, not a new rule, and does not itself change businesses’ compliance obligations today; it will likely be years until an amended version takes effect. But these early stages of the FTC’s rulemaking process can materially impact the shape and contours of a broadened Negative Option Rule governing subscriptions and auto-renewing contracts.

The FTC previously endeavored to update its regulatory framework for negative option contracts, beginning with an ANPRM in 2019 and culminating in the publication of the Final Rule (the “Rule”) in 2024. The Rule would have expanded the scope of the Negative Option Rule, imposing enhanced obligations—such as requiring businesses to obtain second, separate consent to the negative option feature of a contract (i.e., checking an unchecked checkbox or something similar)—on all negative option programs in any medium. In doing so, it would have extended common state law restrictions to a national level for transactions in both a B2C and B2B context. For more information on the Rule’s vacated provisions, please refer to our earlier blog post.

However, last summer—just days before the FTC planned to begin enforcing the delayed compliance provisions—the Eighth Circuit Court of Appeals vacated the Rule on the grounds the FTC did not conduct the preliminary regulatory analysis required for rulemaking under the FTC Act. As such, the original, narrower version of the Negative Option Rule remains in effect. That said, the court left the door open for the FTC to renew its efforts to expand the Negative Option Rule, such as through an ANPRM.

In this ANPRM, the FTC seeks public comments on a variety of topics, including:

• Negative option practices by industry type;
• Negative option practices that do the following (and ways to address the practices):
  • Impact consumers’ ability to understand the terms of a negative option contract;
  • Enroll consumers in a negative option contract without their express informed consent; and
  • Impede or delay consumers from canceling their negative contract;
• Costs for businesses to comply with the Rule and how the FTC could reduce compliance costs; and
• Whether the FTC should continue without the vacated Rule, adopt the provisions of the vacated Rule, suggest amendments to the vacated Rule, or pursue consumer and business education as an alternative to rulemaking.

In many respects, the topics resemble those announced in the FTC’s 2019 ANPRM leading up to the vacated Rule. In that ANPRM, the FTC sought comments on alternatives to the existing Rule, including possible amendments to address disclosures, consumer consent, and cancellation requirements.

Businesses that use subscriptions, auto-renewals, continuity plans, trial-to-paid offers, memberships, or recurring B2B service models should consider weighing in, particularly if they can provide concrete evidence on compliance costs, operational realities, channel/industry-specific issues, and less burdensome alternatives that still address disclosure, consent, and cancellation concerns. Public comments are due April 13, 2026.

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