The FTC is back at the drawing board on negative option marketing, as it announced an Advance Notice of Proposed Rulemaking (ANPRM) regarding the Negative Option Rule.
After amending the Rule in October 2024, the Commission was forced to abandon it in July 2025 when the Eighth Circuit vacated the amended Rule on procedural grounds. According to the FTC, though, ongoing consumer complaints and enforcement actions show widespread unlawful negative option practices continue. Since January 2025, the Commission has brought five enforcement actions and approved six settlements involving alleged negative option misconduct, mostly under its general unfair and deceptive acts power. It is now launching this new rulemaking process, seeking public comment on whether, and how, to modernize the existing Rule.
A “negative option” is any sales practice that treats a consumer’s silence or failure to act as acceptance of an offer. The FTC’s current Negative Option Rule covers only prenotification plans, which are plans in which sellers periodically notify consumers of an offer and then ship and charge for the goods unless the consumer affirmatively declines the offer. The Negative Option Rule does not cover more modern arrangements such as continuity plans, automatic renewals, and free‑to‑pay or nominal‑fee‑to‑pay trial conversions.
While other laws, such as the Restore Online Shoppers’ Confidence Act and the Telemarketing Sales Rule, govern different aspects of negative option marketing, the FTC noted its current regulatory arsenal does not provide a consistent, cross‑channel framework for businesses or consumers. The Commission is now asking whether it should retain the existing Rule, revive elements of the vacated Rule, pursue a different regulatory approach altogether, or even rely on non‑regulatory alternatives like consumer and business education.
In particular, the FTC is seeking comment on the problematic practices highlighted in recent enforcement actions: obscure material terms, enrolling consumers without express informed consent, and making cancellation unnecessarily difficult. The Commission is also requesting business expertise on how widespread negative option marketing has become, how these programs actually operate in practice, and the costs and benefits of various regulatory options.
Once the ANPRM is published in the Federal Register, stakeholders will have a 30‑day window to submit comments. For businesses that rely on subscription models, automatic renewals, or free‑to‑pay conversions, this is a meaningful opportunity to weigh in. M&S has continuously worked with clients to help shape negative option rulemaking. Your expertise matters and we are here to help you participate thoughtfully in the process.
