Advertising & Marketing Law
FTC Issues Final CAN-SPAM Rule On Definition of
“Commercial” Email Messages
By Robert
J. Driscoll
[December 2004]
On December 16, 2004, the Federal Trade Commission (FTC) issued
final regulations concerning the criteria to determine whether the
“primary purpose” of an email is “commercial.”
Because most of the provisions of the CAN-SPAM Act (the “Act”)
— such as the requirement that an email message include an
opt-out opportunity and disclose the sender’s valid physical
postal address — apply only to messages whose primary purpose
is commercial, these regulations will be of great importance to
electronic marketers and others who communicate with customers by
email.
As expected, the regulations confirm that an email message consisting
solely of an advertisement or promotion for a commercial product
or service will be deemed “commercial.” The regulations
also provide that a message containing only “transactional
or relationship” content (generally, information relating
to a prior transaction) will not be deemed “commercial”
and therefore will be exempt from most requirements of the Act.
The most significant clarification concerns what the FTC refers
to as “dual purpose” messages. Under the new regulations,
a message containing both advertising and promotional content and
transactional information generally will be deemed commercial if
the advertising and promotional content dominates the subject line,
or the transaction is not referenced at the beginning of the message.
Messages that contain both advertising and promotional content and
other non-transactional content, such as news, generally will be
deemed commercial if the advertising and promotional content dominates
the subject line or body of the message.
The specific criteria, as set forth in the new regulations, are
as follows:
- If an email message “consists exclusively of the commercial
advertisement or promotion of a commercial product or service,”
then the primary purpose of the message will be deemed to be commercial;
- If an email message “contains both the commercial advertisement
or promotion of a commercial product or service [and] transactional
or relationship content” (which is defined separately and
generally encompasses email messages containing information concerning
a previously agreed-upon transaction or a product or service purchased
by the recipient), the “primary purpose” of the message
will be deemed to be commercial if either (i) a recipient reasonably
interpreting the subject line of the message “would likely
conclude that the message contains the commercial advertisement
or promotion of a commercial product or service,” or (ii)
the message’s transactional or relationship content “does
not appear, in whole or substantial part, at the beginning
of the body of the message”;
- If an email message “contains both the commercial advertisement
or promotion of a commercial product or service [and] other content
that is not transactional or relationship content” (such
as news), the primary purpose of the message will be deemed to
be commercial if either (i) a recipient reasonably interpreting
the subject line of the message “would likely conclude that
the message contains the commercial advertisement or promotion
of a commercial product or service,” or (ii) a recipient
reasonably interpreting the body of the message “would likely
conclude that the primary purpose of the message is the commercial
advertisement or promotion of a commercial product or service,”
taking into account the placement of the commercial content within
the message as a whole and the proportion of the message dedicated
to commercial content; and
- If an email message contains only “transactional or relationship”
content, the message will be deemed to have a “transactional
or relationship” primary purpose (and thus will be exempt
from most requirements of the Act).
The regulations are responsive to a Congressional directive, contained
in the Act, that the FTC define the relevant criteria for determining
the primary purpose of an email message. They follow a Notice of
Proposed Rulemaking on this topic issued by the FTC in August 2004
and a subsequent period of public comment. The complete text of
the regulations, which will take effect on February 18, 2005, is
available at the FTC’s website, www.ftc.gov.
For more information, please contact:
This Advisory is a publication of
the Advertising & Marketing Law Department of Davis Wright Tremaine
LLP. Our purpose in publishing this Advisory is to inform our clients
and friends of recent developments in advertising & marketing
law. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may only be given in
response to inquiries regarding particular situations.
Copyright © 2004, Davis Wright Tremaine
LLP.
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