The biggest news out of the FTC in October (so far) is the issuance of the long-awaited Final Rule governing negative options. The FTC refers to its newest offering as its “Click-to-Cancel" Rule, but, as we show in our in-depth analysis of the Rule, it is so much more than that. Indeed, the Final Rule allows the FTC to obtain monetary penalties for any false or deceptive practice performed by a company that offers negative options.

In her dissenting statement, Commissioner Holyoake noted that, by greatly expanding the Rule’s scope, the Commission is trying to make an end-run around the Supreme Court’s 2021 ruling in AMG, limiting its ability to obtain monetary restitution for Section 5 violations.

Commissioner Holyoake also questioned the timing of the Rule, published just weeks before what will likely be a highly consequential election for both the country and the FTC. Depending on what happens on November 5, any number of the FTC’s remaining Proposed Rules may be in jeopardy. This may be why they have stopped flowing, as there have been no new Proposed Rules since April.