On July 8, 2025, the Eighth Circuit issued its decision[1] to vacate the FTC’s revised Negative Option Rule (the “Rule”). The Eighth Circuit made its decision on procedural grounds, finding that the FTC failed to conduct a required preliminary regulatory analysis before implementing the Rule.
 
The Rule would have amended the existing 1973 Negative Option Rule, with a key focus on ensuring that consumers are able to opt-out of subscription-based agreements at least as easily as they can opt-in.
 
What does this mean for businesses offering subscriptions? It is unclear what the FTC’s next steps are, and if the FTC will conduct the required regulatory analysis and move forward with the Rule once again. In the meantime, given that both the Biden and Trump administrations have been in alignment with supporting the FTC’s efforts with the Rule, businesses would be wise to take steps to make it easier for consumers to opt out of subscriptions.


[1] See Custom Commc’ns, Inc. v. Fed. Trade Comm’n, No. 24-3137, 2025 WL 1873489 (8^th Cir. July 8, 2025).