Authored by CM Law Partner Linda Goldstein, this article breaks down the Federal Trade Commission’s (“FTC”) Advance Notice of Proposed Rulemaking (“ANPRM”), what’s coming next, and how to prepare.

On March 11, 2026, the Federal Trade Commission (“FTC”)  issued its long-anticipated Advance Notice of Proposed Rulemaking (“ANPRM”) concerning negative option marketing. The ANPRM marks the agency’s renewed effort to pass a Trade Regulation Rule governing negative option plans following the Eighth Circuit’s decision to vacate the “Click to Cancel Rule” on procedural grounds.

The ANPRM is clearly designed to cure those procedural defects. The ANPRM does not propose any regulatory text, that will come in the next round when the Notice of Proposed Rulemaking (“NPRM”) is issued. However, it does pose a wide range of questions that the FTC will use to determine the scope, structure, and substance of a future Rule. Public comments are due 30 days after the ANPRM is published in the Federal Register.

While the ANPRM revisits many of the same issues addressed in the vacated Click-to-Cancel Rule, it also raises new issues, signalling that the new rule may not just be a replay of the Click-to-Cancel Rule.

Among other things, the FTC asks whether rulemaking is necessary at all or whether alternative approaches, such as consumer education, business guidance, or enforcement under existing laws, would be sufficient to adequately address deceptive negative option practices. The FTC also seeks comment on whether it should amend the existing Pre-Notification Negative Option Rule or promulgate an entirely new Rule. The existing Pre-Notification Negative Option Rule is narrow and applies only to pre-notification option plans, a business model that is rarely in use today.

The ANPRM makes clear that the FTC remains focused on the four key pillars of the vacated Click-to-Cancel Rule:

• • Clear and conspicuous disclosure of material terms
  • Affirmative express consent to the negative option feature
  • A simple and easy-to-use cancellation mechanism
  • Prohibitions on misrepresentations in promoting negative option plans.

The FTC expressly states that it will consider the provisions of the vacated rule and seeks examples of deceptive practices involving disclosures, consent and cancellation that are being used today. This strongly suggests that any future rule will preserve these core requirements even if some of the details are modified.

The ANPRM also reflects continued scrutiny of Save-A-Sale and cancellation practices. For example, the FTC seeks detailed data on cancellation and enrollment rates and on the time it takes consumers to enroll and to cancel, and how these metrics may vary by industry and by cancellation methods. Similarly detailed data is requested regarding Save-A-Sale offers, including the take rate, the amount of money consumers save, and the interaction with state laws. Notably, the FTC appears to have moved away from the “Click to Cancel” label altogether.

A new and notable area of focus is the role of third-party service providers such as payment processors, subscription management platforms, and CRM providers in enrollment and cancellation workflows. The FTC seeks information about these providers’ compliance practices and how their involvement affects a seller’s ability to comply with the disclosure, consent and cancellation requirements. These questions suggest that the FTC may be considering rule provisions that apply directly to service providers, not just marketers.

The ANPRM also raises the possibility of exemptions. Unlike the prior administration, this FTC may be open to exempting certain businesses or industries.

In an effort to avoid some of the deficiencies that led the Eighth Circuit to vacate the prior rule, the FTC requests extensive industry and economic data to demonstrate that the alleged unfair and deceptive practices are “prevalent” as required under Section 18 of the FTC Act. This includes quantitative data on the number of negative option plans, pricing and revenue generated.

The FTC also seeks robust cost-benefit data, including costs of complying with existing requirements, and the incremental costs associated with adopting all or some of the vacated rule’s requirements.

From an industry perspective, responding to the ANPRM will be challenging. The questions are extremely broad and require data that may be difficult for businesses or trade groups to compile within the thirty (30) day comment period.  While an extension is possible, affected stakeholders should not assume additional time will be granted.

Although a final rule is likely years away, marketers should not relax their compliance efforts. The FTC continues to aggressively challenge marketers offering negative option plans under existing authority as reflected in recent settlements and judgments, including a $2.5 billion settlement with Amazon and its recently announced $75 million settlement with Adobe. In parallel, states continue to enact automatic renewal laws, creating an increasingly complex and inconsistent regulatory landscape.

Key Takeaways:

• • The FTC is restarting its negative option rulemaking agenda. The ANPRM is designed to fix procedural flaws, not to retreat from regulation
  • The comment period is thirty (30) days following publication in the Federal Register unless extensions are granted
  • Core compliance requirements—disclosure, affirmative consent, easy cancellation and truthful advertising remain central
  • Third-party vendors may face direct regulatory obligations
  • Empirical data supporting industry positions will be important
  • Enforcement risks remain high
  • Monitoring of state laws is key, as inconsistent state laws continue to pass

About CM Law

CM Law (cm.law) – formerly Culhane Meadows – is the largest national, full-service, women-owned & managed (WBE) law firm in the United States. Designed to provide experienced attorneys with an optimal way to practice sophisticated law while maintaining a superior work/life balance, the firm offers fully remote work options, a transparent, merit and math-based compensation structure, and a collaborative culture. Serving a diverse clientele—from individuals and small businesses to over 40 Fortune-ranked companies—CM Law is committed to delivering exceptional legal services across a broad spectrum of industries.

The foregoing content is for informational purposes only and should not be relied upon as legal advice. Federal, state, and local laws can change rapidly and, therefore, this content may become obsolete or outdated. Please consult with an attorney of your choice to ensure you obtain the most current and accurate counsel about your particular situation.