On March 11, the FTC announced it was seeking public comment on an advance notice of proposed rulemaking (ANPR) to determine whether amendments to the “Negative Option Rule” are needed to better address deceptive or unfair practices in subscription-based marketing. The agency highlighted that negative option programs, wherein a consumer’s failure to take affirmative action results in charges for goods or services, can provide benefits but also cause significant harm when disclosures are inadequate, billing occurs without consent, or cancellations are obstructed. The FTC reported receiving more than 100,000 complaints over the past five years across dozens of industries, citing ongoing problems such as difficult cancellation processes and unlawful retention tactics. The action followed the 8th Circuit’s July 2025 vacatur of a prior amended rule (covered by InfoBytes here), which had expanded protections by requiring clear disclosures, express informed consent, and simple cancellation mechanisms.

The FTC requested detailed input from consumers, industry participants, and other stakeholders on the prevalence of negative option practices in the marketplace, the costs and benefits of regulatory approaches, and supporting empirical evidence. Comments are requested on whether to retain the current rule, adopt provisions from the vacated 2024 rule, or pursue alternatives such as consumer and business education. The agency also requested information on how these practices affect competition, particularly for small businesses, and whether certain industries should be exempt or subject to stricter rules. Comments on the ANPR must be submitted by April 13.