Document Type
Article
Publication Date
2025
Abstract
There is a broader regulatory battle in which subscription-based businesses, particularly in the health and fitness industry, are being reined in by increasingly aggressive consumer protection regimes. This Article examines this conundrum facing regulators and affected businesses in four parts. Part I explores the concept of negative option marketing, the FTC’s theory of harm and justification for promulgating the Rule in the modern subscription economy, and the compliance burdens it would have imposed on the health and fitness industry. Part II explains the pushback from the health and fitness industry that delayed enforcement, created loopholes, and helped fuel the lawsuits that ultimately led to the Rule’s vacatur. Part III examines the FTC possibly taking another crack at the matter and a number of states that already have similar requirements. In addition, efforts are already underway to codify the Rule’s essential components. Part IV offers forward-looking guidance for the health and fitness industry to adopt more transparent and consumer-friendly cancellation practices regardless of the uncertain legal landscape. Proactive action may lead to unexpected growth, especially among Gen-Z, and potentially avoid an expansive federal mandate, which could destabilize the industry and infringe upon contractual freedom.
Recommended Citation
Nicholas J. Christopolis, The Gym-Pire Strikes Back: Is the Eighth Circuit’s Vacatur of the FTC’s Click-to-Cancel Rule the End of the Regulatory Workout for the Health and Fitness Industry?, 36 Marq. Sports L. Rev. 79 (2025).