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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.

Click here to download the final rule (16 CFR Part 316: Project No. R411008: Definitions and Implementation Under the CAN-SPAM Act of 2003: Statement of Basis and Purpose and Final Rule).

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