http://www.ftc.gov/opa/2004/12/canspamfrn.htm
For Release: December 16, 2004
FTC Issues Final Rule Defining What Constitutes a "Commercial Electronic
Mail Message"
Notice Includes Criteria For Determining the "Primary Purpose" of an
E-Mail Message
The Federal Trade Commission today issued final regulations to facilitate
the determination of whether an e-mail message has a commercial primary
purpose and is subject to the provisions of the CAN-SPAM Act. The CAN-SPAM
Act, which took effect January 1, 2004, requires the Commission to issue
regulations "defining the relevant criteria to facilitate the determination
of the primary purpose of an electronic mail message." The FTC published
a Federal Register notice of proposed rulemaking (NPRM) on August 13,
2004, seeking public comment on its proposed primary purpose criteria.
The NPRM followed an Advance Notice of Proposed Rulemaking, issued on
March 11, 2004, on this and other related issues raised by the CAN-SPAM Act
As detailed in the Federal Register notice, which will be published
shortly and can be found on the Commission's Web site as a link to this
press release, the final Rule is substantially similar to the proposal
contained in the NPRM, but adds a criterion for determining the primary
purpose of an e-mail message containing only "transactional or
relationship" content, among other minor changes. The CAN-SPAM Act
regulates both commercial messages and transactional or relationship
messages. The notice makes clear that the Commission does not intend to
regulate non-commercial speech through the Rule. The notice also addresses
public comments received about the constitutionality of the CAN-SPAM Act,
as well as of the FTC's "primary purpose" criteria.
The final Rule sets forth criteria for determining the primary purpose of
various kinds of e-mail messages. These include:
* For e-mail messages that contain only the commercial advertisement or
promotion of a commercial product or service ("commercial content"),
the primary purpose of the message will be deemed to be commercial;
* For e-mail messages that contain both commercial content and
"transactional or relationship" content as set forth in the Act's
definition of "transactional or relationship message" and in the final
Rule, the primary purpose of the message will be deemed to be commercial
if either: 1) a recipient reasonably interpreting the subject line of
the e-mail would likely conclude that the message contains commercial
content; or 2) the e-mail's "transactional or relationship" content
does not appear in whole or substantial part at the beginning of the
body of the message;
* For e-mail messages that contain both commercial content and content
that is neither "commercial" nor "transactional or relationship," the
primary purpose of the message will be deemed to be commercial if
either: 1) a recipient reasonably interpreting the subject line of the
message would likely conclude that the message contains commercial
content; or 2) a recipient reasonably interpreting the body of the
message would likely conclude that the primary purpose of the message
is commercial. Factors relevant to this interpretation include the
placement of commercial content in whole or in substantial part at the
beginning of the body of the message; the proportion of the message
dedicated to commercial content; and how color, graphics, type size,
and style are used to highlight commercial content; and
* For e-mail messages that contain only "transactional or relationship"
content, the message will be deemed to have a "transactional or
relationship" primary purpose.
Finally, the final Rule incorporates the "Sexually Explicit Labeling Rule"
as promulgated in April 2004. The Commission vote approving publication of
the Federal Register notice was 4-0-1, with Commissioner Jon Leibowitz not
participating.
Copies of the Federal Register notice are available from the FTC's Web
site at http://www.ftc.gov and also from the FTC's Consumer Response
Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580.
The FTC works for the consumer to prevent fraudulent, deceptive, and
unfair business practices in the marketplace and to provide information to
help consumers spot, stop, and avoid them. To file a complaint in English
or Spanish (bilingual counselors are available to take complaints), or to
get free information on any of 150 consumer topics, call toll-free,
1-877-FTC-HELP (1-877-382-4357), or use the complaint form at
http://www.ftc.gov. The FTC enters Internet, telemarketing, identity
theft, and other fraud-related complaints into Consumer Sentinel, a
secure, online database available to hundreds of civil and criminal law
enforcement agencies in the U.S. and abroad.
MEDIA CONTACT:
Mitchell J. Katz
Office of Public Affairs
202-326-2161
STAFF CONTACTS:
Catherine Harrington-McBride or Michael Goodman,
Bureau of Consumer Protection
202-326-2452 or 202-326-3071
(FTC File No. R411008)
(http://www.ftc.gov/opa/2004/12/canspamfrn.htm)
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