On Wednesday, the Federal Trade Commission (FTC) issued a call for comments in response to its Advance Notice of Proposed Rulemaking Regarding Negative Option Marketing Practices.

The call for comments comes after the Eighth Circuit struck the FTC’s previous amended Negative Option Rule because the FTC did not issue a preliminary analysis of the benefits and effects of the proposed rule and any reasonable alternatives, because it initially failed to treat the rule as “economically significant” to the national economy.

The FTC has not abandoned the proposals in the previous rule. Instead, the FTC’s primary goal appears to be to remedy the issues the court raised when invalidating the previous rule (which the FTC refers to as the “Vacated Rule”). 

The FTC has asked what requirements from the Vacated Rule are needed to address unlawful negative option practices prevalent in the marketplace? The FTC’s other questions seek information on the current costs for complying with existing laws on negative options and how those costs will change if the agency adopts all or part(s) of the vacated rule, and whether and what exemptions should be imposed. 

The FTC also asks for evidence supporting the Final Regulatory Analysis, the Final Regulatory Flexibility Act Analysis, and the Paperwork Reduction Act Analysis in the final rule document for the vacated rule.

To learn more about the Negative Option Rule or autorenewal programs, or if your organization would like to submit comments, please contact the authors.

Want an edge in today’s marketplace? Get up to speed on the latest advertising laws and regulations by downloading Venable’s newest Advertising Law Tool Kit, authored by some of the most experienced attorneys in the industry. The 14th edition of this easy-to-use guide is packed with checklists and fresh insights on everything from claim substantiation and fee disclosures to lead generation and privacy.

Download this year’s Tool Kit and bookmark the e-book for quick access to best practices.

If you have specific questions after reading any of the Tool Kit‘s 43 helpful chapters, don’t hesitate to contact our authors to arrange a conversation or to suggest a topic for future editions.

We also invite you to tune in to the Ad Law Tool Kit Show, our podcast that examines the increasingly complex regulatory landscape, and if you haven’t already, be sure to subscribe to this award-winning blog.

Last week, the Fifth Circuit Court of Appeals held that the Telephone Customer Protection Act (TCPA) permits businesses to obtain only prior express consent rather than prior express written consent for autodialed and prerecorded calls and texts. This holding expressly rejects the Federal Communication Commission’s (FCC) interpretation of the TCPA’s consent requirement first promulgated in 2012.

In Bradford v. Sovereign Pest Control, the Fifth Circuit affirmed the lower court’s grant of summary judgment to the defendant, refusing to apply a stricter consent standard to telemarketing texts than to non-telemarketing or informational messages. In the case, the court rejected the FCC’s long-standing regulation that interpreted the TCPA to require prior express written consent for telemarketing messages, holding that because the TCPA’s statutory text does not distinguish between telemarketing and non-telemarketing/informational messages, courts should not apply a stricter consent standard for telemarketing messages.

Continue Reading Fifth Circuit Limits TCPA Prior Express Written Consent Requirements

The Supreme Court has agreed to weigh in on the interpretation of a decades-old federal privacy statute that has found renewed relevance in the modern digital advertising ecosystem. In Salazar v. Paramount Global, the Court will consider the scope of the Video Privacy Protection Act (VPPA), specifically, who qualifies as a “consumer” entitled to the statute’s protections. The decision to grant certiorari reflects a clear and growing circuit split with implications for companies that operate video-enabled websites, ad-supported streaming platforms, and content-driven digital services.

Congress enacted the VPPA in 1988 in response to a highly publicized privacy controversy during the confirmation hearings of Supreme Court nominee Judge Robert Bork. During those hearings, a Washington newspaper obtained and published Bork’s video rental history from a local video store. The incident sparked bipartisan concern over the ease with which sensitive viewing habits could be disclosed, prompting Congress to pass legislation restricting such practices.

Continue Reading Supreme Court Takes Up VPPA Case With Major Implications for Digital Advertising and Privacy

Last week, the Federal Trade Commission (FTC) revived its efforts to update the Negative Option Rule. On Friday, the FTC announced it had submitted a draft Advance Notice of Proposed Rulemaking (ANPRM) concerning the agency’s Rule Concerning the Use of Prenotification Negative Option Plans (the Negative Option Rule), to the Office of Information and Regulatory Affairs within the Office of Management and Budget.

Last summer, the U.S. Court of Appeals for the Eighth Circuit vacated the rule on the bases that it was not promulgated in accordance with necessary rulemaking procedures, and was overly broad. The text of the updated rule is not yet public, but we anticipate it will address the Eighth Circuit’s concerns, including taking a narrower approach in its restrictions of autorenewal and subscription marketing. 

Join Venable’s Autorenewal Solutions Team (VAST) on February 26 when they discuss these and other updates. RSVP here.

Among the many changes included in the One Big Beautiful Bill Act (OBBBA) is one relevant to brands and agencies running sweepstakes, contests, and other consumer promotions.

For prizes (such as cash, gift cards, trips, merchandise, and event tickets) awarded after December 31, 2025, OBBBA raises the federal Form 1099-MISC reporting threshold from $600 to $2,000, with automatic inflation adjustments beginning in 2027. Prizes awarded during calendar year 2025 remain subject to the $600 threshold.

Continue Reading New Prize Tax Rules Raise the 1099 Threshold for Sweepstakes and Contests

This month, Texas Attorney General Ken Paxton launched an investigation into major grocery chains’ use of chemical pesticides on produce labeled “organic” by the manufacturer. Paxton’s  office expressed concern that the grocery chains may be deceiving consumers who base their purchasing decision on the belief that organic produce has not been treated with pesticides.

Texas AG Investigation into Organic Produce

Before labeling produce as certified “organic,” a manufacturer must comply with regulations issued by U.S. Department of Agriculture (USDA), including limits on synthetic substances and pesticides. Central to the investigation is Produce Maxx, a chlorine-based pesticide commonly used in grocery stores. Although the U.S. Environmental Protection Agency (EPA) permits Produce Maxx to be sprayed on produce and considers it safe to consume, the USDA requires certified “organic” produce to have chlorine pesticides rinsed off before consumption.

Continue Reading Texas Attorney General Probes Pesticide Use on “Organic” Produce at Grocery Chains

Last week, the Federal Trade Commission (FTC) filed a lawsuit in federal court against JustAnswer LLC and its CEO, arising from the company’s subscription program. According to the complaint, JustAnswer operates an online platform that engages “experts” where consumers can ask questions through online chats or phone calls about various subject areas.

The complaint alleges JustAnswer advertised a nominal fee for consumers to join the platform and receive an answer to their question (often $1 or $5). However, the FTC alleged that after the customer agreed to the nominal charge, JustAnswer simultaneously enrolled customers in an autorenewing subscription and charged them a much larger monthly fee ($28–$125) and continued to automatically charge consumers every month until the consumer canceled the subscription.

Continue Reading FTC Lawsuit Targets JustAnswer for Alleged ROSCA and Subscription Disclosure Violations

Last week, an Eleventh Circuit panel unanimously upheld a federal district court’s summary judgment ruling in favor of the Federal Trade Commission (FTC) concerning advertising and disclosure practices related to a national fuel card program. The decision affirms the FTC’s authority to seek and obtain broad injunctive relief for unfair or deceptive acts and practices, particularly where fee disclosures and consent mechanisms are found to be inadequate.

In its opinion, the three-judge panel rejected a number of arguments challenging the scope of the district court’s relief and confirmed that forward-looking injunctive measures were appropriate given the record before it. The panel affirmed summary judgment on all five counts of the FTC’s complaint against the company and on four of five counts asserted against its chief executive officer.

The ruling may bring to a close more than seven years of litigation, spanning multiple changes in FTC leadership and enforcement priorities, as well as the Supreme Court’s decision in AMG Capital Management, LLC v. FTC, which narrowed the agency’s ability to obtain monetary relief under Section 13(b) of the FTC Act.

Continue Reading FTC Wins Eleventh Circuit Ruling Over Hidden Fees and Deceptive Marketing

The Federal Communications Commission (FCC) has further extended the effective date of the Revoke All consent rule from April 11, 2026 to January 31, 2027. That rule requires businesses to treat a consumer’s consent revocation request made in response to one type of text message or call as applicable to all future calls and texts from that caller on all other matters. The FCC first extended the effective date last April.

The FCC’s new extension is intended to allow more time for the FCC to take comments and consider adjustments to the rule. In particular, the FCC recently initiated a rulemaking proceeding to seek comment on ways the agency can modify the requirement that a caller must treat an opt-out request made in response to one type of call or text to be an opt-out request for all types of calls and texts. Reply comments in that proceeding are due on February 3, 2026; please let us know if you would like to prepare and file comments.

Continue Reading FCC Delays Revoke All Consent Rule for Robocalls and Text Messages Until 2027