[Federal Register Volume 62, Number 61 (Monday, March 31, 1997)]
[Proposed Rules]
[Pages 15135-15137]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-8064]


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FEDERAL TRADE COMMISSION

16 CFR Part 425


Request for Comments Concerning Rule Regarding Use of negative 
Option Plans by Sellers in Commerce

AGENCY: Federal Trade Commission.

ACTION: Request for public comments.

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SUMMARY: The Federal Trade Commission (``Commission'') requests public 
comments about the overall costs and benefits and the continuing need 
for its Trade Regulation Rule regarding the Use of Negative Option 
Plans by Sellers in Commerce (``the Negative Option Rule'' or ``the 
Rule''), as part of the Commission's systematic review of all current 
Commission regulations and guides.

DATES: Written comments will be accepted until June 2, 1997.

ADDRESSES: Comments should be directed to: Secretary, Federal Trade 
Commission, Room H-159, Sixth Street and Pennsylvania Ave., N.W., 
Washington, D.C. 20580. Comments should be identified as ``Negative 
Option Rule, 16 CFR Part 425--Comment.''

FOR FURTHER INFORMATION CONTACT: Edwin Rodriguez, Attorney, Federal 
Trade Commission, Washington, D.C. 20580, telephone number (202) 326-
3147.

SUPPLEMENTARY INFORMATION:

I. Background

A. Negative Option Rule

    The Commission promulgated the Negative Option Rule on February 15, 
1973, 38 FR 4896 (1973), under section 5 of the Federal Trade 
Commission Act (``FTC Act''), 15 U.S.C. 45.\1\ The Rule became 
effective on June 7, 1974. In promulgating the Rule following a 
rulemaking proceeding, the Commission made the following findings:
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    \1\ Section 5 of the FTC Act declares unfair methods of 
competition and unfair or deceptive acts or practices to be 
unlawful.
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    (1) marketers of prenotification negative option plans had failed 
to disclose adequately the provisions of such plans to the detriment of 
their subscribers, Id. at 4899;
    (2) subscribers had encounters difficulties in substantiating that 
they were not given adequate time to respond to the negative option 
notice supplied by the merchandiser, Id. at 4900;
    (3) marketers of prenotification negative option plans had 
delivered unordered or substituted merchandise in the place of 
merchandise specifically ordered by subscribers, without their 
subscribers' prior consent, Id.;
    (4) marketers of prenotification negative option plans had failed 
to honor proper cancellation notices from contract-complete subscribers 
\2\ and continued to send them merchandise, Id. at 4901;
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    \2\ Negative option plans often require subscribers to purchase 
a minimum quantity of merchandise, after which they may cancel their 
subscriptions. The Rule refers to a subscriber who has purchased the 
minimum quantity of merchandise required by the terms of the plan as 
a ``contract-complete subscriber.''
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    (5) subscribers had been dunned or billed for unordered 
merchandise, and sellers had failed to provide meaningful service to a 
large number of their subscribers in connection with complaints 
involving operations, particularly in regard to billing problems, Id.; 
and
    (6) marketers of prenotification negative option plans had operated 
their entire systems in such a manner as to place the burden for 
correcting ``errors'' on their subscribers, Id. at 4902.
    Based on these findings, the Commission determined that it was in 
the public interest to prescribe

[[Page 15136]]

regulations for the operation of prenotification negative option 
plans.\3\ The Rule defines covered ``negative option plans'' as 
contractual arrangements under which a seller and a subscriber enter 
into an agreement whereby the seller periodically sends the subscriber 
an announcement in advance (the ``prenotification'') that identifies 
merchandise it proposes to send to the subscriber, and thereafter bills 
the subscriber for the merchandise unless the subscriber instructs the 
seller by a date or within a time specified in the announcement not to 
send the merchandise (the ``negative option'').\4\ In summary, the 
Negative Option Rule requires a seller using a prenotification 
``negative option plan'' to:
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    \3\ The Rule applies only to prenotification negative option 
plans, i.e., those in which marketers send a notice of selection to 
subscribers prior to shipment of merchandise and ship and bill the 
subscriber for the merchandise if the subscriber does not return a 
rejection notice within a prescribed time. The Rule does not apply 
to negative option marketing arrangements under which marketers 
optionally tender merchandise to subscribers without previously 
sending a prenotification announcement. The Commission determined 
that the latter arrangements that were used at the time the 
Commission promulgated the Rule (which were known as continuity 
plans, subscription shipments, library standing order arrangements, 
or annual and series arrangements) were so different from the 
prenotification negative option plans (such as book and record 
clubs) that separate treatment by the Commission would be warranted 
if and when consumer complaints justified Commission attention. Id. 
at 4908.
    \4\ The Commission considered and rejected assertions that it 
should ban prenotification negative option plans as being inherently 
unfair. Id. at 4902-04.
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    (1) disclose specific material information about the plan ``clearly 
and conspicuously'' in promotional materials;
    (2) send the subscriber an announcement (which identifies the 
merchandise selection to be sent) in advance of shipping merchandise 
and give the subscriber a specific amount of time to notify the seller 
that the subscriber does not want the selection (otherwise, the seller 
may send the merchandise and bill the subscriber for it);
    (3) notify subscribers that they may return merchandise with return 
postage guaranteed and receive credit under certain circumstances;
    (4) give credit to subscribers and guarantee postage adequate to 
return merchandise under certain circumstances;
    (5) ship introductory and bonus merchandise within four weeks of 
receipt of an order;
    (6) terminate promptly the subscription of a contract-complete 
subscriber upon written request; and
    (7) ship substitute merchandise only with the express consent of 
the subscriber.
    In 1986, the Commission conducted a review of the Negative Option 
Rule pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
to determine the impact of the Rule on small entities. In a Federal 
Register notice published on November 21, 1986, 51 FR 42087, the 
Commission announced the results of that review, concluding that 
``there is a continued need for the Rule; there is no reason to believe 
that the Rule has had a significant economic impact on a substantial 
number of small entities; and the rule should not be changed.''

B. Treatment of Unordered Merchandise

    In commenting on the Negative Option Rule; interested parties 
should be aware of certain other legal requirements that apply to any 
marketer who ships and attempts to collect for unordered merchandise. 
Specifically, it is unlawful to send any merchandise by any means 
without the express prior request of the recipient (unless the 
merchandise is clearly identified as a gift, free sample, or the like, 
or is mailed by a charitable organization soliciting contributions); 
or, to try to obtain payment for or the return of the unordered 
merchandise. Merchandise sent without the customer's prior express 
agreement may be treated as unordered merchandise pursuant to section 
3009 of the Postal Reorganization Act of 1970, 39 U.S.C. 3009, and 
section 5 of the FTC Act.\5\ Customers who receive unordered 
merchandise are legally entitled to treat the merchandise as a gift. 
The law concerning unordered merchandise is not being reviewed in this 
proceeding. An understanding of how that law works in tandem with the 
Negative Option Rule, however, is useful.
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    \5\ Under section 3009(a) of the Postal Reorganization Act, 
mailing of unordered merchandise constitutes a violation of section 
5 of the FTC Act. In a public notice it published on September 11, 
1970, the Commission formally recognized section 3009 as the proper 
interpretation of section 5, 35 FR 14328 (1970). In order to clarify 
the 1970 notice and avoid misunderstanding concerning the 
Commission's enforcement policy, the Commission published an 
additional notice on January 31, 1978, stating that the standard 
under section 5 of the FTC Act was not limited to unordered 
merchandise sent by U.S. mail. The Commission explained that it 
might, for example, prosecute as a violation of section 5 a nonmail 
shipment of merchandise that does not meet the standards of 39 
U.S.C. 3009, 43 FR 4113 (1978).
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II. Regulatory Review Program

    The Commission has determined to review all current Commission 
rules and guides periodically. These reviews seek information about the 
costs and benefits of the Commission's rules and guides and their 
regulatory and economic impact. The information obtained assists the 
Commission in identifying rules and guides that warrant modification or 
recision. Therefore, the Commission solicits comments on, among other 
things, the economic impact of and the continuing need for the Negative 
Option Rule; possible conflict between the Rule and state, local, or 
other federal laws; and the effect on the Rule of any technological, 
economic, or other industry changes.

III. Request for Comment

    The Commission solicits written public comments on the following 
questions:
    (1) Is there a continuing need for the Negative Option Rule?
    (a) What benefits has the Rule provided to purchasers of the 
products affected by the Rule?
    (b) Has the Rule imposed costs on purchasers?
    (2) What changes, if any, should be made to the Rule to increase 
the benefits of the Rule to purchasers?
    (a) How would these changes affect the costs the Rule imposes on 
firms subject to its requirements? How would these changes affect the 
benefits to purchasers?
    (3) What significant burdens or costs, including costs of 
compliance, has the Rule imposed on firms subject to its requirements?
    (a) Has the Rule provided benefits to such firms? If so, what 
benefits?
    (4) What changes, if any, should be made to the Rule to reduce the 
burdens or costs imposed on firms subject to its requirements?
    (a) How would these changes affect the benefits provided by the 
Rule?
    (5) Does the Rule overlap or conflict with other federal, state, or 
local laws or regulations?
    (6) Since the Rule was issued, what effects, if any, have changes 
in relevant technology or economic conditions had on the Rule? For 
example, do sellers use E-mail or the Internet to promote or sell 
subscriptions to negative option plans? If so, in what manner; and does 
use of this new technology affect consumers' rights or sellers' 
responsibilities under the Rule?
    (7) Are there any abuses occurring in the promotion, sale, or 
operation of negative option plans that are not prohibited or regulated 
by the Rule? If so, what mechanisms should be explored to address such 
abuses (e.g., consumer education, industry self-regulation, rule 
amendment)?

[[Page 15137]]

List of Subjects in 16 CFR Part 425

    Trade practices.

    Authority: 15 U.S.C. 41-58.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 97-8064 Filed 3-28-97; 8:45 am]
BILLING CODE 6750-01-M