On March 11, 2026, the FTC issued an Advance Notice of Proposed Rulemaking seeking public comment on whether the agency should amend its Rule Concerning the Use of Prenotification Negative Option Plans under Section 5 of the Federal Trade Commission Act.
Negative option marketing refers to arrangements where a consumer’s silence or failure to take affirmative action is interpreted as consent to be charged for goods or services. The FTC states that it continues to receive thousands of complaints regarding such practices and is seeking comment on whether changes to the existing rule are needed to address allegedly deceptive or unfair subscription and recurring billing practices.
In the Advance Notice of Proposed Rulemaking, the FTC seeks information on several aspects of negative option programs and potential regulatory approaches, including:
- Marketplace scope. The FTC requests data on how widely negative option programs are used across industries, including how consumers enroll in and cancel these programs.
- Potential unfair or deceptive practices. The agency seeks information on practices that allegedly prevent consumers from understanding program terms, enroll consumers without express informed consent, or impede cancellation.
- Regulatory approaches. The FTC asks whether it should amend the current rule, adopt provisions similar to the agency’s vacated 2024 negative option rule, or consider alternatives such as consumer and business education.
- Economic impacts. The FTC seeks data regarding the potential costs and benefits of different regulatory approaches for consumers and businesses.
Putting It Into Practice: The FTC has recently revisited its approach to negative option rulemaking after the Eighth Circuit vacated the agency’s 2024 rule (previously discussed here). The Advanced Notice of Proposed Rulemaking signals that the FTC may again pursue broader regulation of subscription and recurring billing practices. Businesses offering subscription or automatic renewal programs should monitor these developments closely.