On Dec. 16, 2003, President Bush signed the first federal anti-spam legislation into law. The CAN-SPAM Act takes effect Jan. 1, 2004, and pre-empts the anti-spam statutes passed in 36 states. However, there are several provisions that require the Federal Trade Commission (“FTC”) to promulgate more specific regulations. For example, while the Act requires commercial emails to be labeled as advertisements or solicitations, it does not provide for a common identifier such as “ADV:”, but instead requires the FTC to propose labeling standards with 18 months of the Act’s enactment. The FTC must also issue regulations defining the relevant criteria to qualify as a “commercial electronic mail message” under the Act within 12 months.
Some of the key components of the CAN-SPAM Act include:
- It applies to all “commercial electronic mail messages” defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service”;
- All commercial electronic mail messages must include: non-misleading subject headings and transmission information; a return email address for the recipient to request removal from future mailings or another type of Internet removal mechanism; the physical address of the sender; and a clear identification that the message is an advertisement or solicitation;
- “Transactional or routine messages,” which include emails where the primary purpose is to facilitate a commercial transaction, provide information regarding a warranty, account balance, or a change in a particular term or feature, or to deliver goods or services, including product updates or upgrades, under the terms of an agreed upon transaction, are exempt from all email content requirements except for truthful subject headings and transmission information;
- Potential criminal penalties, enforced by the FTC, include up to five years in prison and $6 million in treble damages;
- Potential civil penalties, enforced by state attorneys general and Internet service providers, include up to $3 million in damages.
Our Update dated Dec. 2, 2003, provides detailed information on the terms of this Act. If you have any questions regarding or would like a copy of the CAN-SPAM Act, please contact us.