The FTC is again seeking public comment on whether it should update its current “Negative Option” Rule to enhance its enforcement tools against unfair and deceptive recurring subscription practices. This is not a surprising move, in part given a recent flurry of enforcement against these practices (discussed in our post here), which has continued despite the Eighth Circuit’s decision to vacate the FTC’s previous amended Rule last July. 

According to the FTC, the existing patchwork of laws and regulations fails to provide a consistent legal framework for marketing recurring subscriptions across different media. Even so, the FTC has aggressively enforced against allegedly unfair and deceptive subscription practices under the federal FTC Act and Restore Online Shoppers’ Confidence Act (ROSCA).  For example, the FTC has initiated five cases and approved six settlements related to subscription practices since January 2025. Nevertheless, ongoing consumer complaints – thousands per year – indicate that consumers feel that more should be done to regulate subscription practices. 

So, the FTC has issued an Advance Notice of Proposed Rulemaking (ANPRM) to gather public comments about: (i) practices that prevent consumers from understanding the terms of auto-renewing programs, enroll consumers without their express informed consent, or impede their cancellation; and (ii) ways to address these practices, including by retaining the current Rule (first issued in 1973), adopting provisions of the Rule vacated last year (discussed in our post here), and/or implementing alternatives to regulation, like consumer and industry education.  The ANPRM emphasizes that comments may be more persuasive when substantiated with evidence, particularly economic data and market studies. 

The ANPRM includes dozens of questions for respondents to consider, including about:

• The marketplace for subscription programs, including which industries provide them, how long it takes consumers to enroll and cancel, and which third parties (e.g., payment service providers) are involved in enrollment and cancellation.

• Unfair or deceptive practices, including about practices that make it difficult for consumers to understand all material terms of a subscription program, enroll consumers without their consent, and make it hard to cancel.  The FTC also seeks comments about save attempts (a/k/a retention offers), including acceptance rates, cost savings, their impact on the cancellation process, and state laws like California’s that regulate them. 

• The FTC asks about specific provisions of the vacated Rule, which it may consider in proposing a new rule.  The ANPRM also seeks information about current costs of complying with the existing patchwork of laws and regulations and how costs might change if it adopts all or part of the vacated Rule.

• The FTC will also consider how to handle industry requests for exemptions from the requirements of a new rule and seeks input about exemption procedures and criteria. 

Ultimately, the FTC will continue to use the FTC Act and ROSCA (and other enforcement tools) to challenge deceptive recurring subscription practices, and state regulators and class action plaintiffs are actively challenging these practices too.  In the meantime, consider responding to the FTC (instructions here) by April 13, 2026 if you want to share your perspective with the Agency. Of course, let us know if you want any help thinking through or crafting your comments.