Clicking All the Right Boxes: FTC Moves to Revive “Click-to-Cancel” Rule Following Eighth Circuit Vacatur

Background: Eighth Circuit Vacates Click-to-Cancel Rule

On July 8, 2025, the U.S. Court of Appeals for the Eighth Circuit vacated the Federal Trade Commission’s (FTC) Rule Concerning Subscriptions and Other Negative Option Plans, commonly known as the “Click-to-Cancel” rule. As detailed in a previous client alert, the rule was intended to regulate negative option plans^[1]— such as subscriptions and automatic renewals — by imposing stringent requirements on businesses, including streamlined cancellation processes and enhanced disclosure obligations. The Eighth Circuit vacated the Click-to-Cancel rule because it found that the FTC had failed to comply with mandatory procedural requirements. As a result, the rule is no longer in effect, and businesses are not currently subject to its mandates.

FTC Action: Steps Toward Revival

In response to the Eighth Circuit’s decision, the FTC has moved swiftly to revisit its regulatory approach. On January 30, 2026, the FTC announced that it had submitted a draft Advanced Notice of Proposed Rulemaking (ANPRM) concerning negative option plans to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB). This submission, required under Executive Orders 12866 and 14215 for all significant regulatory actions, marks the beginning of a new rulemaking process. The two FTC Commissioners unanimously approved the submission, signaling a strong commitment to reestablishing a regulatory framework for negative option features. Once OIRA completes its review, the FTC will publish the ANPRM in the Federal Register and solicit public comment.

General Timeline of Rulemaking Process

Once the ANPRM is published, the FTC will provide a public comment period that lasts 60-90 days, followed by an additional comment period (30-90 days) on the actual regulatory text that the FTC proposes, referred to as the “Notice of Proposed Rulemaking.” Between these notice periods, the FTC will need time to review and synthesize the comments, which could take a few months to a year. Formal and informal hearings can also extend the timeline. The prior Click-to-Cancel rule took about three years to become a final rule. Given the Eight Circuit’s prior vacatur of the rule on procedural grounds, the FTC is likely to take extra care (and potentially time) to ensure it checks all the appropriate boxes.

Implications for Businesses and Next Steps

The FTC’s prompt initiation of a new rulemaking process underscores its continued focus on regulating negative option plans and protecting consumers from potentially deceptive subscription practices. The submission of the draft ANPRM signals that renewed federal regulation is forthcoming.

Companies offering subscriptions or automatic renewal programs should closely monitor regulatory developments and prepare for the upcoming public comment period. Though it will take some time to get the final rule, companies should be mindful that the FTC can still regulate unfair or deceptive practices in subscriptions and automatic renewals through its general Section 5 mandate or other regulations, such as the Restore Online Shoppers’ Confidence Act, 15 U.S.C. §§ 8401-8405.

As the FTC advances its renewed regulatory approach to negative option plans — including subscriptions and automatic renewals — businesses face evolving compliance requirements and increased scrutiny. Crowell & Moring’s experienced team can help clients navigate these developments, anticipate regulatory risks, and implement robust strategies to ensure ongoing compliance with both existing law and forthcoming changes.