The Next Rule’s Hardest Questions

This chapter examines what the FTC’s March 2026 advance notice of proposed rulemaking asks the market to establish after the 2024 Negative Option Rule was vacated. The focus is the difference between an agency gathering evidence and an agency imposing a binding requirement: the notice reopens questions about scope, prevalence, costs, and design, but it is not itself a replacement rule. That distinction lets readers evaluate the possible next step without treating a proposal, a complaint count, or an economic model as settled law.

A notice that reopens the record

The FTC’s starting point is a familiar tension. Negative-option arrangements can give sellers predictable revenue and give consumers convenience, lower transaction costs, or a chance to try a product before paying the full price. But the same structure can turn inaction into recurring charges when the offer is unclear, consent is not informed, or cancellation is difficult. The Eighth Circuit’s decision removed the 2024 all-media framework because of a rulemaking defect; it did not answer whether the market still needs more specific protection.

The March 13, 2026 ANPRM—the formal notice that begins or broadens an agency’s inquiry before a proposed rule—asks whether there is a continuing need for the current 1973 rule. It asks whether the FTC should address negative-option plans that the 1973 rule does not cover, such as continuity services, automatic renewals, and trial conversions. It also asks whether the right response would be to amend the existing rule, create a new rule or rules, adopt some provisions of the vacated 2024 framework, or rely on education for consumers and businesses rather than new regulation.

Those alternatives are not interchangeable. Retaining the 1973 rule would preserve a narrow regime for prenotification plans for goods but leave the modern coverage gap largely in place. Amending it could preserve continuity with the old rule while adding new categories. A new rule could create a cleaner structure but would need to satisfy the same statutory requirements that made the earlier rule vulnerable. Education might improve voluntary practices, but the notice asks the public to show how effectively education would prevent unfair or deceptive conduct without an enforceable standard.

The notice therefore requests evidence at several levels. It asks how many negative-option enrollments exist, which industries use them, how many cancellations occur, how long enrollment and cancellation take, and how often customers try to cancel without completing the process. It asks about prices, unused subscriptions, charges after attempted cancellation, and the role of payment processors, subscription-management platforms, and customer-relationship systems. It asks which practices make terms hard to understand, enrollment unintentional, or cancellation difficult, and whether each practice is prevalent across all plan types or only some.

That last question matters because section 18 of the FTC Act requires more than a general impression that a problem exists. The FTC must have reason to believe that the unfair or deceptive practices subject to a proposed rule are prevalent. The 2026 notice asks commenters to identify the evidence, frequency, affected consumers, industries, and transaction types supporting such a conclusion. It also asks whether particular features—such as sophisticated negotiation in some business contracts or differences among industries—make a practice less prevalent in certain settings.