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As reported previously, on March 13, the Federal Trade Commission issued an advance notice of proposed rulemaking and request for public comment regarding the need for amendments to the Commission’s “Rule Concerning the Use of Prenotification Negative Option Plans” ( i.e., “Negative Option Rule” or “Rule”).

Comments are due by April 13, 2026

The purpose of this proposed rulemaking is to help consumers avoid recurring payments for products and services they did not intend to order and to allow them to cancel such payments without unwarranted obstacles.

The FTC defines a “negative option” as any type of sales term or condition allowing a seller to interpret a customer’s silence, or failure to take an affirmative action, as acceptance of an offer. According to the regulator, negative option marketing generally falls into four categories: prenotification negative option plans, continuity plans, automatic renewals, and free-to-pay or nominal-fee-to-pay conversion offers.

Prenotification plans are the only negative option practice currently covered by the FTC’s rules.

The Commission seeks comments on ways to improve its existing regulations for negative option marketing, a common form of marketing where the absence of affirmative consumer action constitutes assent to be charged for goods or services. Negative option offers, which have become more widespread in recent years, can provide substantial benefits for sellers and consumers in the marketplace. However, consumers cannot reap such benefits when sellers fail to make adequate disclosures, charge consumers without their consent, or make cancellation difficult or impossible. Over the years, these types of negative option practices have remained a persistent source of consumer harm, often saddling consumers with recurring payments for goods and services they did not intend to purchase or they no longer want. In the past, the Commission has sought to address such practices through individual law enforcement cases and a patchwork of regulations. Nevertheless, consumers continue to encounter these practices in the marketplace and submit thousands of complaints about them to the FTC each year.

In October 2024, the FTC amended the Rule to address ongoing consumer complaints and continued misconduct in the marketplace. On July 8, 2025, shortly before businesses would need to comply with all parts of the Rule, the United States Court of Appeals for the Eighth Circuit vacated the amended Rule, holding that the Commission had failed to conduct the preliminary regulatory analysis required under section 22 of the FTC Act, 15 U.S.C. 57b-3(b)(1).^[1] However, the record compiled during that rulemaking, as well as ongoing consumer complaints and recent enforcement cases,^[2] show continued unlawful negative option marketing practices in the marketplace.

To address these persistent concerns, the Commission seeks comments on ways to improve existing regulatory requirements, including whether it should use its rulemaking authority under the FTC Act to modernize the Rule.