On March 11, 2026, the Federal Trade Commission (“FTC” or “the Commission”) announced an Advanced Notice of Proposed Rulemaking (“ANPRM”) regarding its Rule Concerning the Use of Prenotification Negative Option Plans, commonly known as the Negative Option Rule (“the Rule”). This ANPRM signals the beginning of a rulemaking process that will expand the scope of the rule and drive a major priority for the Trump-Vance FTC.
The ANPRM was published in the Federal Register on March 13, 2026. Comments from the public are due on April 13, 2026. After reviewing the record developed through the ANPRM, the Commission may decide whether to proceed to a notice of proposed rulemaking, propose specific amendments, or take no further action.
The ANPRM reflects the Trump‑Vance FTC’s view that existing rules and laws do not adequately address consumer harms associated with negative option plans. Adopted more than 50 years ago, the current Rule is limited to prenotification plans, such as product‑of‑the‑month clubs, in which consumers are charged unless they affirmatively decline an offer. According to the FTC, this narrow focus leaves the Rule ill‑suited to address modern subscription‑based arrangements, including continuity plans, automatic renewals, and free‑to‑pay conversion plans that have become commonplace across industries.
The FTC further notes that negative option marketing is presently governed by a “patchwork of laws and regulations”—including Section 5 of the FTC Act, the Restore Online Shoppers’ Confidence Act (“ROSCA”), the Telemarketing Sales Rule, and state automatic renewal laws—rather than a uniform regulatory framework. As a result, different legal requirements may apply depending on the marketing channel used, such as online, telephone, print, or mail‑based offers, or jurisdiction where the consumer resides.
The ANPRM follows the U.S. Court of Appeals for the Eighth Circuit’s vacatur of the amended Negative Option Rule (the “Vacated Rule”) last summer on procedural grounds. The Vacated Rule—sometimes referred to as the “click‑to‑cancel” rule—would have significantly expanded the scope of the existing Rule to cover all negative option programs across all media and would have imposed prescriptive requirements related to disclosures, express informed consent, and cancellation mechanisms.
Through this ANPRM, the FTC is seeking public input on whether the existing Rule should be amended and, if so, how. The Commission states that it is soliciting views from both consumers and industry stakeholders to ensure that any future rulemaking addresses unfair or deceptive practices without unduly burdening legitimate business activity. The ANPRM is unusual compared to prior ANPRMs in that it includes numerous specific and detailed requests for data. In particular, the FTC emphasizes that market studies, economic data, and other empirical evidence will be especially important. Among other things, the FTC seeks information and data regarding:
- The amount of time it takes consumers to enroll in and cancel subscription programs;
- The use and impact of “save” offers, including how much money consumers save by accepting such offers and how those offers affect competition;
- The proportion of businesses that do not engage in unfair or deceptive acts when offering negative option programs;
- Which portions of the Vacated Rule provided measurable benefits to consumers;
- For the average negative option seller, the current costs of complying with existing federal, state, and local laws and regulations governing negative option practices;
- The prevalence and operation of negative option programs, including how such programs are structured, marketed, and administered across industries and media;
- Practices that may impair consumer understanding, consent, or cancellation, including whether such practices are widespread and the extent to which they cause consumer harm;
- Potential regulatory approaches, including whether the FTC should retain the current Rule, adopt some or all elements of the Vacated Rule, develop alternative or more narrowly tailored requirements, or rely on non‑regulatory measures such as consumer and business education;
- The costs and operational impact of potential requirements on businesses, including whether particular obligations would interfere with legitimate business practices or impose disproportionate compliance burdens; and
- Whether specific industries, programs, or segments of the marketplace should be exempted or treated differently under any revised rule.
The FTC’s issuance of this ANPRM reflects continued regulatory attention to negative option and subscription based business models following the vacatur of the agency’s prior amendments. While the scope and content of any future rulemaking remain uncertain, the ANPRM provides insight into the issues the FTC is considering as it reassesses the Negative Option Rule.
Covington will continue to monitor developments related to this rulemaking and related enforcement activity. If you have any questions concerning the material discussed in this blog post, please contact the members of our Advertising and Consumer Protection Investigations practice.
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