FTC Seeks Comments on Proposed Can-Spam Rules

The Federal Trade Commission will publish a Federal Register Notice on Friday, August 13, 2004, seeking public comment on proposed rules regarding commercial electronic mail messages. The CAN-SPAM Act, which took effect January 1, 2004, requires that the Commission issue regulations “defining the relevant criteria to facilitate the determination of the primary purpose of an electronic mail message.” In this Federal Register Notice, the FTC introduces proposed criteria to facilitate the determination of when an e-mail message has a commercial primary purpose, and seeks comments in response to this proposal.

Beginning August 13, comments can be filed electronically by following instructions on a Web-based form available on the following Web site: https://secure.commentworks.com/ftc-canspam. Commenters may address as many or as few issues as they wish by writing what they choose in a text box available via the Web-based form, or by using the form to attach a separate document for submission to the record.

The Notice of Proposed Rulemaking to be published in the Federal Register Notice on August 13, 2004, proposes criteria for determining the “primary purpose” of an e-mail message. This is the second step in this rulemaking process, following an “Advance Notice of Proposed Rulemaking” published in the Federal Register on March 11, 2004. In the earlier notice, the FTC sought comment on the mandatory “primary purpose” rulemaking, and on several other issues, including certain areas of discretionary rulemaking authority established in the Act, several compliance issues that have been raised by industry since passage of CAN-SPAM, and several reports that CAN-SPAM requires the FTC to prepare and submit to Congress.

The August 13 Federal Register Notice will address only the FTC’s proposed “primary purpose” criteria. This Notice will not address the discretionary rulemaking issues or the compliance issues upon which the FTC sought comment in the earlier Federal Register Notice. The FTC will address those issues in a future Federal Register Notice that the Commission will be publishing shortly.

As explained in the August 13 Federal Register Notice, the FTC is proposing the following criteria for determining when an e-mail message has a commercial primary purpose:

• First, if an e-mail message contains only content that advertises or promotes a product or service (“commercial content”), then the primary purpose of the message would be deemed to be commercial;
  
  
• Second, if an e-mail message contains both commercial content and content that falls within one of the categories listed in the Act’s definition of “transactional or relationship message,” then the primary purpose of the message would be deemed to be commercial if either 1) a recipient reasonably interpreting the subject line of the message would likely conclude that the message advertises or promotes a product or service; or 2) the message’s “transactional or relationship” content does not appear at or near the beginning of the message;
  
  
• Third, if an e-mail message contains both commercial content and content that is neither “commercial” nor “transactional or relationship,” then the primary purpose of the message would be deemed to be commercial if either: 1) a recipient reasonably interpreting the subject line of the message likely would conclude that the message advertises or promotes a product or service; or 2) a recipient reasonably interpreting the body of the message likely would conclude that the primary purpose of the message is to advertise or promote a product or service. Factors illustrative of those relevant to this interpretation would include the placement of commercial content at or near 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.

Starting August 13, comments can be filed electronically by following instructions on a Web-based form available on the following Web site: https://secure.commentworks.com/ftc-canspam. Comments must be submitted on or before September 13, 2004. Written comments should refer to the CAN-SPAM Act Rulemaking, Project No. R411008 on both the envelope and the text. Comments can be delivered by courier or overnight service to Federal Trade Commission/Office of the Secretary, Room H-159, 600 Pennsylvania Avenue, N.W., Washington, DC 20580. Comments can be mailed by U.S. Postal Service to the following address: Federal Trade Commission, CAN-SPAM Act, Post Office Box 1030, Merrifield, VA 22116-1030. Comments will be placed on the public record.

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, 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.