Negative Option Rule Back in Focus as FTC Reopens Rulemaking

On March 13, 2026, the FTC published an (ANPR) regarding Negative Option Marketing Practices in the Federal Register. The ANPR—required by Magnuson-Moss Rulemaking—asks the public for input as to whether the current Negative Option Rule should be significantly expanded. As we have , in July 2025, the Eighth Circuit vacated a significantly updated Negative Option Rule last year. It did so largely on procedural grounds. In publishing the notice, the FTC cited “persistent concerns” and ongoing consumer complaints and recent enforcements actions. The FTC’s new ANPR is likely the first step in resuscitating former Chairman Lina Khan’s robust Rule, while remedying those procedural defects.

The deadline to submit comments to the ANPR is April 13, 2026.

The Vacated Negative Option Rule

The vacated Negative Option Rule defined a negative option feature as “a provision of a contract under which the consumer’s silence or failure to take affirmative action to reject a good or service or to cancel the agreement is interpreted by the negative option seller as acceptance or continuing acceptance of the offer.” A primary example of a negative option feature is an automatic-renewal provision. While the FTC already regulates negative option features via, among other methods, the Restore Online Shoppers’ Confidence Act (ROSCA), the FTC’s authority under ROSCA is limited, and the vacated Rule would have expanded the FTC’s authority in this regard.

The FTC’s prior amendments to the Negative Option Rule would have required, among other things: (1) providing clear and conspicuous disclosures regarding any negative option feature presented immediately next to a consent mechanism for the feature, (2) obtaining express informed consent to the negative option feature separately from any other portion of the transaction, and (3) providing a simple cancellation mechanism that must be “at least as easy to use” as the mechanism used to consent to the negative option feature. Perhaps most controversially, the vacated Rule created an expansion of FTC authority to obtain civil penalties for any material misrepresentation made by a company utilizing a negative option feature. This created a significant loophole through which the FTC could obtain statutory damages upwards of $53,088 for any perceived misrepresentation regarding any aspect of the consumer product.

What Comes Next

The questions posed in the ANPR lay the groundwork for amendments to the Negative Option Rule that would be substantially similar to the Rule promulgated under former FTC Chair Lina Khan. In fact, the FTC states that it “may consider portions of the Vacated Rule to propose a new rule.” This is somewhat surprising since when the prior Negative Option Rule was adopted, then-Commissioner Ferguson voted against the amendments.

Regardless of this change in position, the new Proposed Rule would likely be substantially similar to the Final Rule promulgated under Chair Khan. And because the FTC is now going through an arguably more appropriate procedural process, the new Rule would likely have a greater chance of withstanding procedural scrutiny. This does not mean, of course, that any new Rule would withstand substantive attacks. Similarly to the prior Rule, we predict any new Rule will not preempt more stringent state laws regarding automatic renewals, such as California’s Automatic Renewal Law (ARL).  

If you are interested in submitting comments, please contact us. For information concerning Manatt’s ARL Team or its recently published ARL Handbook, please visit us .