In January 2026, the Federal Trade Commission announced that it submitted a draft Advance Notice of Proposed Rulemaking (“ANPRM”) concerning the FTC’s Rule Concerning the Use of Prenotification Negative Option Plans, otherwise known as the “Negative Option Rule,” to the Office of Information and Regulatory Affairs (“OIRA”) within the Office of Management and Budget.

In 2025, the Eighth Circuit vacated the rule on the eve of the effective date, leaving just state automatic renewal laws, the federal Restore Online Shoppers’ Confidence Act (”ROSCA”) and the Telemarketing Sales Rule to police automatic renewal-related disclosures, consent and cancellation processes.  According to an FTC compliance lawyer, numerous states, including California and New York, have aggressive ARL legislation.  

The rule was vacated in 2025 because it was believed by the court to exceed the scope of the FTC’s authority and that it was not promulgated in accordance with necessary rulemaking procedures.  

The substance of the new rule is not yet known and may not be for some time.  However, it is anticipated that it will include some of the provisions from the previously proposed Negative Option Rule, including an expansion of the requirements provided by ROSCA with respect to material disclosures, affirmative consent and easy cancellation for automatic renewal subscription programs.  It is further anticipated that the proposed new rule will directly address  the opinion of the Eighth Circuit, including more narrowly tailored requirements with respect to automatic renewals and negative option offers.

President Trump previously issued an executive order requiring the FTC to submit any “significant regulatory actions” to OIRA for prior review.  If the OIRA approves the ANPRM, then it will be published in the Federal Register and available for public review.

Consult an experienced FTC compliance attorney if you are interested in implementing preventative automatic renewal compliance protocols, or if you are the subject of an FTC investigation relating to such marketing practices.