Americans love the idea of the free market, but is the market really free when consumers are trapped in paid subscriptions they no longer need? In an attempt to protect consumers from problematic fees and prolonged subscriptions, the Federal Trade Commission has launched the final version of its amendments to the Negative Option Rule. Most notably, it provided a “Click-to-Cancel” component. The purpose of the new rule is to “ensure consumers understand what they are purchasing and allow them to cancel their participation without undue burden.” Upon announcing the proposed “Click-to-Cancel” provision, FTC chair Lina Khan stated, “The proposed rule would require that companies make it as easy to cancel a subscription as it is to sign up for one.” 

In 2024, the FTC noted nearly seventy complaints on negative option and recurring subscription practices per day, up from 42 per day in 2021. The rising grievance shows the necessity for regulation to achieve the FTC’s goal of protecting consumers from unfair and deceptive business practices. The rule maintains that it is deceptive for companies “to fail to provide a simple mechanism to cancel the negative option feature and immediately halt charges.” In fulfilling Khan’s promise, the direct language from the final rule requires a cancellation “at least as simple as consent.”

The new rule was a part of the Biden-Harris administration’s wider “Time-is-Money” Initiative, citing several other proposed agency rules to better serve the consumer from the hoops businesses force them to jump through. Agencies listed in the initiative beyond the FTC include the Consumer Financial Protection Bureau, the Department of Transportation, and the Department of Education. 

Consumers were quick to celebrate the rule. However, President-elect Donald Trump has made clear his opposition to regulation. One of his campaign promises was “Liberating America from Biden’s Regulatory Onslaught.” Under his past presidency, Trump instituted executive orders limiting regulatory power. This included the “two-for-one” provision, which mandates that for every regulation passed, the agency must repeal two. With two out of five of the commissioners of the FTC dissenting on the Negative Option Rule, a number of ways to repeal it are possible. In fact, regulatory overreach is precisely the issue mentioned in the dissenting opinion of FTC Commissioner Melissa Holyoak. 

First, depending on Trump’s decisions as to the fate of the FTC, basic notice-and-comment rulemaking is still an option for repeal. The Trump transition team has made their opinion on the current FTC chair known. Elon Musk, who will co-lead the new Department of Government Efficiency, posted on X, “She will be fired soon” in reference to Khan. Considering both dissenting commissioners belong to the Republican party, it is likely that a subsequent Republican appointee will follow suit. 

Trump’s FTC chair nomination will be critical to the continued life of the rule. However, it is unlikely that they will be a proponent. Second, the Congressional Review Act (CRA) provides that a major rule may be repealed through a Joint Resolution of Disapproval. The time limit for disapproval is sixty legislative days from its submission to Congress. Considering the rule has not yet been submitted to Congress, a joint resolution is likely, though still dependent on a narrow GOP House of Representatives majority. President-elect Trump is no stranger to the CRA. During his year in office, Congress invoked the law sixteen times.

With the House and Senate under Republican leadership and Trump’s clear disdain for previous Khan-era FTC rules, including the noncompete ban, the future of the Click-to-Cancel rule is, at best, uncertain.

Mackenzie Carroll is a JD Candidate at Cardozo Law School and President of the Cardozo International Law Society.

Image: Anna Moneymaker / Shutterstock.com.