CAN SPAM Laws & E-Mail

Published: January 31, 2005, By Sheila A. Millar, Attorney-at-Law, Keller & Heckman, Washington, DC

Legal Briefs

Many members of the converting industry have been following the new CAN SPAM law and its impact on e-mail communications. CAN SPAM covers unsolicited electronic mail messages in which the primary purpose is the commercial advertisement or promotion of a commercial product or service (including content on an Internet Web site operated for commercial purposes). CAN SPAM requires the following:

• the "initiator" of the e-mail include a clear statement that the message is an advertisement;
• the "initiator" of the e-mail provide accurate and non-misleading header/subject information;
• the message include a valid postal address for the "sender";
• the message include a method to opt out of receiving additional e-mails from the "sender";
• sender and their agents honor "opt-out" requests within ten days.

As expected, the Federal Trade Commission (FTC), on December 16, issued its Final Rule on when the "primary purpose" of electronic messages is commercial. Because this rule is deemed a major rule under the Small Business Regulatory Enforcement Fairness Act (SBREFA), it will take effect on April 18.

The primary purpose of mixed commercial and non-commercial content will be determined based on the "net impression" of the message on the recipient. Consequently, the Rule will have a broad impact on an array of electronic messages.

The Agency has established the following criteria to determine if the primary purpose of your e-mail is "commercial" and thus whether you must follow the CAN SPAM requirements for commercial electronic communications.

While some industry members argued for an exemption for business-to-business communications, the FTC did not rule on the issue. The FTC will address this and other issues in a future discretionary rulemaking. So for now, businesses should use care to provide accurate sender and subject information and honor opt-out requests.

Commercial Messages: If an e-mail contains only content advertising or is promoting a commercial product or service, the primary purpose of the e-mail would be deemed commercial.

Transactional/Relationship Messages: If an e-mail contains only "transactional or relationship" content, such as content that facilitates or confirms a previous commercial transaction or provides warranty, recall, safety, or similar information, it is an exempt transactional/relationship message. Including additional advertising copy in the message, such as an offer for a discount on additional purchases, would make it a mixed transactional/commercial message.

Mixed Transactional/Commercial Messages: If an e-mail contains both commercial and "transactional or relationship" content, the primary purpose of the e-mail would be deemed commercial if (a) a recipient "reasonably interpreting the subject line of the message" would conclude the message advertises or promotes a commercial product or service; or (b) the transactional/relationship component does not appear at or near the beginning of the message. For this to be deemed primarily a transactional/relationship message, the subject line must not contain a reference to a commercial advertisement or promotion for a commercial product or service, and the transactional/relationship content must appear in whole or substantial part at the start of the body of the message.

Mixed Commercial/Other Messages: If an e-mail contains both commercial content and content that is neither commercial nor transactional/relationship (such as entertainment), the primary purpose of the e-mail would be deemed commercial if:

• a reasonable interpretation of the subject line is that the message advertises or promotes a product or service, or
• a reasonable interpretation of the body of the message would be that the primary purpose of the message is to advertise or promote a product or service. The FTC has suggested such a consideration focus on the placement of commercial content in an e-mail message, the proportion of commercial content, and the use of color, graphics, type size, etc., to highlight commercial content.

Once an e-mail is deemed to have a "commercial" primary purpose, it must comply with the relevant opt-out requirements. CAN SPAM does not prevent any company from sending unsolicited e-mails with a commercial primary purpose. Adopting and honoring preferences about contacts makes good business sense, regardless. The FTC will be providing additional guidance on aspects of CAN SPAM under a further discretionary rulemaking, most likely to be initiated later this year.

Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; This email address is being protected from spambots. You need JavaScript enabled to view it.; packaginglaw.com.