FTC Issues Guidance on Joint Permission E-Mail Marketing

The Direct Marketing Association released a clarification yesterday from the Federal Trade Commission to help e-mail marketers in determining who is the “sender” for certain e-mail messages.

The DMA requested the guidance because of ambiguity regarding who is the sender of a commercial e-mail under the CAN-SPAM Act when a single message consists of one or more ads from different companies and the recipient has provided permission to receive the e-mail.

Specifically, the DMA sought clarification on whether the entity receiving permission from the recipient to send the e-mail is considered the sender. The FTC said there would be only one “sender,” providing certain conditions are met:

· At least one of the sellers who contributes commercial content to the e-mail must receive the recipient's affirmative consent, after clear and conspicuous disclosure that additional sellers may contribute advertising content to subsequent e-mail messages arriving from that consent.

· The seller that has received the recipient's affirmative consent must satisfy the CAN-SPAM Act's definition of “sender” — “a person or entity who initiates such a message and whose product, service or Web site is advertised or promoted by the message.”

The FTC also told the DMA that multiple advertisers contributing to a single message are still “initiators” of the e-mail and need to ensure that commercial e-mail they initiate contains no false or misleading transmission information or deceptive subject headings and includes an opt-out mechanism.

Also, the FTC issued guidance on what it called “best practices,” including providing the sender's name in the message's “from” line and the list of e-mail addresses to which the message will be sent is determined by the sender. This guidance is not a rule or other law administered by the FTC, but what it said companies should “strongly consider implementing.”

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