The subscription rule you complied with was struck down. The one you will need has not started.
Free-trial and auto-renewal copy is governed by three rules on three different clocks: one vacated in court, one written but not commenced, and one that has applied unchanged since 2005 — which is the only one that can be enforced against you this morning.
AngleVerdict teamus · eu · uk · de
In October 2024 the FTC published a rule that told you exactly what a subscription funnel had to do: disclose the material terms, get express consent, provide a simple way to cancel. A lot of operators rebuilt their flows around it. It no longer exists. Meanwhile the UK has written a more demanding version that has not commenced, and the provision most likely to be used against a free-trial ad today is a single sentence from a 2005 directive. Three rules, three clocks, one funnel.
Three clocks, one funnel
| Market | In force today | The rule people talk about |
|---|---|---|
| US | FTC Act §5 on deceptive acts and practices, and ROSCA for online negative-option transactions. Plus the original 1973 Negative Option Rule, which came back into effect when its replacement was vacated — and which covers only prenotification plans. | The October 2024 “click-to-cancel” Rule, 16 C.F.R. § 425: no misrepresenting material facts, disclosure of material terms, express consent, a simple cancellation mechanism. VACATED on 8 July 2025. The FTC opened a fresh rulemaking in March 2026. |
| EU | The Unfair Commercial Practices Directive in full, including the Annex I blacklist. Point 20 on “free” and point 7 on false urgency are unfair in ALL circumstances under Article 5(5) — no balancing, no disclaimer, no cure. | Nothing pending. The blacklist has applied unchanged since 2005, which is precisely why it is the one that can be enforced against you this morning. |
| UK | The same blacklist wording, carried into Schedule 20 of the DMCCA 2024 and enforceable by the CMA directly rather than through a court first. | The DMCCA subscription regime in Part 4, Chapter 2: key pre-contract information, a reminder notice for each renewal payment, a 14-day initial cooling-off period, and a duty to make ending the contract straightforward. Written and not commenced — the government “anticipate[s] that the regime will commence in spring 2027”. |
| DE | The blacklist as transposed, plus the enforcement route that changes the timetable rather than the rule: a competitor or a trade association can act directly, without waiting for a regulator to take an interest. | Also nothing pending, and that is the point — in Germany the question was never which rule, it was how fast someone else can move. |
The one line that has been in force the whole time
“Describing a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item.”
That is point 20 of Annex I to the Unfair Commercial Practices Directive, and it is the most under-read sentence in performance marketing. Read what it permits: the unavoidable cost of RESPONDING to the offer, and the cost of collecting or paying for DELIVERY. Nothing else. “Free — just cover shipping” survives only if the shipping charge is the real cost of delivery; “free trial, £1 handling” does not, because handling is not delivery. And Article 5(5) makes the Annex I list unfair in all circumstances, so there is no balancing test to win, no disclaimer that fixes it, and no argument that the consumer was not actually misled.
- Ask which rule is OPERATIVE, not which market is strict. On this subject the answer changed twice in eighteen months, and it moved in opposite directions on the two sides of the Atlantic.
- Do not read a vacatur as an endorsement. This one turned on procedure, § 5 and ROSCA still apply, and a redrafted rule is already in progress.
- Audit the word “free” against point 20 line by line. The only permitted charges are responding and delivery — shipping can qualify, handling and processing cannot.
- A blacklist entry has no disclaimer defence. If your fix is a longer footnote, you have not fixed an Annex I breach.
- Build the cancellation flow you will need in 2027 rather than the one you needed in 2024. The requirements are legible now, in two places, and neither is going to get softer.
This is not legal advice, and dates in this area move — every rule described above is quoted from the primary sources linked below, including the court opinion itself, and they are the versions to check before you rely on any of it.
Sources
- Custom Communications, Inc. v. FTC, No. 24-3137 (8th Cir., 8 July 2025)The vacatur, from the court’s own published opinion: the petitions for review are granted and the Rule vacated because the Commission failed to follow § 22 of the FTC Act. Source for the procedural, rather than substantive, basis.
- FTC — Negative Option Rule (legal library)The Commission’s own page for the rule: the October 2024 final rule and the Advance Notice of Proposed Rulemaking of March 2026 that followed the vacatur.
- Directive 2005/29/EC on unfair commercial practices, consolidated text (EUR-Lex)Primary source for Annex I point 20, quoted verbatim above, for point 7 on false urgency, and for Article 5(5), which is what makes the Annex I list unfair in all circumstances.
- Digital Markets, Competition and Consumers Act 2024, Part 4 Chapter 2 (legislation.gov.uk)The UK subscription regime as enacted: pre-contract information, the reminder notice for each renewal payment, cooling-off rights and the duty to make ending the contract straightforward.
- UK government response — consultation on implementing the subscription contracts regimeSource for the commencement expectation, in the government’s own words: it will legislate when parliamentary time allows and anticipates the regime commencing in spring 2027.
Related verdicts
- Does “Results not typical” make a weight-loss claim safe?US · Supplements
- Can a skincare ad say “clinically proven”?US · Beauty & skincare
Read next
- The countdown that resets is the only breach anyone can prove with a page refresh
Fake urgency is unusual: almost every advertising breach needs someone to interpret an impression, and this one needs a reload. Three of the four markets we cover complete the breach on falsity alone, and in one of them it is a criminal offence.
- What a supplement ad may not imply — and why Europe is stricter than the US here
Most compliance advice is about what you say. These rules are about what a reader concludes, and on weight loss the European bar is the higher one — which is the opposite of what most operators expect.
Guides explain the rule. The checker tells you what your own wording does with it.
Check your copy