FTC Seeks to Revive Negative Option Rulemaking

The Federal Trade Commission (FTC) has signaled its interest in making another attempt to update its rule imposing disclosure and other requirements on subscriptions and auto-renewals. 

On January 30, 2026, the FTC announced that it submitted a draft Advance Notice of Proposed Rulemaking (ANPRM) to the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget to modify the rule.

Provided OIRA approves the ANPRM, the FTC will publish the notice in the Federal Register seeking public comment. Typically, such notices do not contain concrete proposed rule language. Rather, as required by the FTC Act, they include a “brief description of the area of inquiry under consideration, the objectives which the Commission seeks to achieve, and possible regulatory alternatives under consideration by the Commission”—often conveyed through questions eliciting public comment.

As background, in July 2025, the Eighth Circuit invalidated the FTC’s Biden-era expansion of the Negative Option Rule for procedural deficiencies (see our prior blog post on the ruling here). While the Republican members of the Commission voted against adopting the updated rule in fall 2024, the FTC vigorously defended the rule in the Eighth Circuit after those members assumed leadership of the agency during the second Trump administration.

The FTC’s effort to restart the negative option rulemaking process is consistent with its vigorous enforcement concerning recurring subscriptions under Section 5 of the FTC Act and the Restore Online Shoppers’ Confidence Act, which has continued under the leadership of Chairman Andrew Ferguson. At the same time, this rulemaking effort is surprising in light of then-Commissioner Ferguson’s remarks that during the second Trump administration, the FTC “will focus primarily on our traditional role as a cop on the beat,” rather than as a regulator. We will continue to help companies monitor both the FTC’s “cop” and “regulator” activities, including developments on the ANPRM.