FTC Signals Restart On Negative Option Rulemaking

In July 2025, the Eighth Circuit vacated the Federal Trade Commission's (FTC) Negative Option Rule, which was set to go into effect that month. You can find more details in our blog post on that decision, but, in short, the court found that the FTC failed to satisfy certain procedural hurdles when promulgating the rule. As we noted in that post, even though the Negative Option Rule was issued by the Biden administration, Republican commissioners previously signaled support for many of its provisions. That support has turned into real action. We do not know yet what the substance of the rule will look like, but there is clear intent to restart the rulemaking process.

Specifically, on January 30, the FTC submitted a draft Advance Notice of Proposed Rulemaking (ANPRM) to the Office of Information and Regulatory Affairs (OIRA). If OIRA approves the ANPRM, then it will be published in the Federal Register and available for public review. This action itself is notable