On March 11, 2026, the Federal Trade Commission (FTC) issued an Advance Notice of Proposed Rulemaking (ANPRM) seeking public comment on whether it should amend its Rule Concerning the Use of Prenotification Negative Option Plans (the Negative Option Rule), which governs certain offers in which a seller interprets a consumer’s silence or failure to take affirmative action as acceptance or continuing acceptance of the offer.
“Negative option subscriptions can offer procompetitive features to consumers and the marketplace more broadly by lowering transaction costs and ensuring consumers receive uninterrupted service,” Christopher Mufarrige, director of the FTC’s Bureau of Consumer Protection, said in a press release announcing the ANPRM. “The Commission’s enforcement track record suggests, however, that negative option subscriptions continue to be plagued by difficult cancellation processes, unlawful retention tactics, and a suite of other impediments that prevent consumers from easily switching or ending subscription services. Neither consumers nor competition are protected when consumers are enrolled in programs that they either do not want or cannot cancel.”
Negative Option Features
Negative option features are widely used. They include “prenotification plans,” like book-of-the-month clubs, in which sellers first offer and then send — and charge for — a good if the consumer takes no action to decline the offer. They include “continuity plans,” like bottled-water delivery, in which consumers agree in advance to receive period shipments of goods or provision of services until they cancel the agreement. They include “automatic renewals,” like magazine and streaming service subscriptions, in which sellers automatically renew consumers’ subscriptions when they expire, unless consumers affirmatively cancel the subscriptions. And they include “free trials” in which goods or services are offered for free (or at a reduced price) for a trial period and, after the trial period, at a higher price unless consumers affirmatively cancel or return the goods or services.
In the ANPRM, the FTC explained that the Negative Option Rule has not been substantively changed since 1973, given the Eighth Circuit’s July 2025 order vacating the amendments made by the so-called “Click-to-Cancel Rule,” and noted that it only addresses one type of negative-option offers — that is, prenotification plans.
Key Issues on Which the FTC Seeks Input
- Current Marketplace Practices: How businesses market products and services using negative option features and how these negative option programs operate.
- Problematic Conduct: Practices that prevent consumers from understanding negative option program terms, result in consumer enrollment without express informed consent, or hinder consumer cancellation, and the prevalence of these practices (including the prevalence in business-to-business transactions). The FTC also seeks information on whether it is unfair or deceptive to offer discounts or other incentives to consumers to remain enrolled in a negative option program instead of promptly offering a consumer’s request to cancel.
- Regulatory Approaches: Whether to retain the existing Rule, incorporate concepts from the vacated 2024 rule, adopt new provisions, or rely on non‑regulatory measures, such as education. The FTC specifically requests comment as to four requirements in the vacated 2024 rule: (i) prohibiting misrepresentations of material fact in connection with a negative option feature or any other aspect of the underlying product or service; (ii) three-year record retention of consumer consent documentation; (iii) disclosure of recurring charges until cancellation, amount of charge, the deadline by which a consumer must cancel, and how to cancel; and (iv) a simple mechanism to cancel the negative option.
- Supporting Evidence: Market studies, economic data, and empirical analyses.
Takeaways for Businesses
The ANPRM signals the FTC’s continued focus on negative option features and its intent to restart the rulemaking process to update the Negative Option Rule to include broad, cross-media requirements. Companies using negative option features — automatic renewals, continuity programs, trial‑to‑paid conversions, or bundled offers — should consider proactively evaluating their disclosures, consent mechanisms, and cancellation pathways in anticipation of potential rule changes.
Interested parties may submit public comments on the ANPRM within 30 days of its publication in the Federal Register, which might occur in late March or early April.