FTC Defines Commercial E-Mail

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The Federal Trade Commission yesterday outlined criteria by which it will discern whether the primary purpose of an e-mail is commercial or non-commercial, an important determination for enforcement of the CAN-SPAM Act.


Under CAN-SPAM, regulations affect e-mail whose primary purpose is commercial. The FTC's new criteria for determining the primary purpose of an e-mail include:


· E-mails that contain only advertisements or promotions are commercial.


· For e-mails that have both commercial messages and "transactional or relationship" content, such as order confirmation and warranty information, two rules apply. The primary purpose is commercial if the recipient can "reasonably" interpret from the subject line that the e-mail is commercial, or if the transactional or relationship content is not at the beginning of the e-mail.


· For e-mails that contain both commercial content and non-commercial, non-transactional or non-relationship content, the primary purpose is commercial if the recipient can "reasonably" conclude from the subject line or body of the message that the e-mail is commercial. Factors include placement of the commercial message, proportion of the message that is commercial and how the e-mail's design is used to highlight commercial content.


· E-mails containing transactional or relationship content only would have a separate "transactional or relationship" primary purpose, the FTC said.


In a statement, the Direct Marketing Association approved of the FTC's clarification, especially the determination that transactional e-mails, including account statements, are considered non-commercial messages. The DMA also said that the FTC clarified that subscription newsletters are considered transactional, even if they contain ads.


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