After Vacatur: Which Rules Still Apply?
After the 2024 Negative Option Rule was vacated, the subject is no longer one all-media cancellation standard. It is a stack of authorities whose relevance depends on what was sold, how the customer enrolled, how payment was authorized, and how the seller handled cancellation. The practical task is not to memorize a replacement slogan; it is to classify those facts carefully enough to identify the governing legal lane without treating general information as a decision about a particular contract.
The rule depends on what happened and where
The FTC’s March 2026 advance notice of proposed rulemaking states that vacatur reinstated the prior version of the Negative Option Rule, first promulgated in 1973. That rule remains precise within its original domain: prenotification plans for goods. It requires clear and conspicuous disclosures about the plan’s basic terms, including how to reject a selection, any minimum purchase obligation, cancellation rights, relevant shipping charges, the time available to reject, return-credit treatment, and the frequency of notices. It also sets procedures for notices, rejection instructions, and qualifying written cancellation requests.
What it does not do is equally important. The restored rule does not by itself become a general automatic-renewal, digital-subscription, or free-trial law. The FTC and the Eighth Circuit describe its scope as limited to prenotification plans, while the later FTC notice says continuity plans, automatic renewals, and trial conversions were not covered by the current rule. A seller’s arrangement can therefore be a negative option without being the kind of prenotification plan that triggers the 1973 requirements.
Section 5 of the FTC Act supplies a broader foundation. It prohibits unfair or deceptive acts or practices and can reach negative-option conduct outside the restored rule. The FTC has described several baseline principles: material terms should be disclosed clearly and before agreement; sellers should obtain consent; material facts should not be misrepresented; promised cancellation procedures should work; and sellers should not create unreasonable barriers or ignore compliant cancellation requests. Charging without express informed consent can also be treated as unfair.
Section 5 is broad, but it is not a universal cancellation script. The legal assessment depends on the advertisement’s claims, its overall impression, the consumer’s likely understanding, and the seller’s practices. The same cancellation step may have different significance depending on what the seller promised, what the customer was told, and whether the customer could reasonably avoid the injury. Section 5 can preserve enforcement risk after vacatur, but it does not automatically recreate the detailed 2024 requirements.
ROSCA—the Restore Online Shoppers’ Confidence Act—adds a more specific online layer. For goods or services sold on the internet through a negative option, it generally requires clear and conspicuous disclosure of all material terms before obtaining billing information, express informed consent before charging, and simple mechanisms to stop recurring charges. It also addresses certain post-transaction third-party sellers and restricts an initial merchant’s disclosure of billing information for an internet-based sale to such a seller.