FTC rule changes: Keeping up with CAN-SPAM

Effective July 2008, the FTC released updates to the CAN- SPAM Act of 2003 with a number of rule changes that will affect many online marketers. Enforced by the FTC, the Department of Justice and the state attorneys, CAN-SPAM preempts all state laws on spam. All marketers need to review these new rule changes with their legal counsel to ensure their compliance.

The new rule changes address four areas: new opt-out requirements; designated sender rule for multiple advertisers; more flexibility on displaying a valid postal address, and clarified definition of a “person.”

The opt-out mechanism will affect a number of marketers. It specifies that marketers must provide a clear and simple unsubscribe mechanism. By only providing an e-mail address, a recipient can simply send a reply e-mail message to unsubscribe or visit a single Internet Web page to opt out of receiving a sender’s future e-mails. Forcing subscribers to log into their accounts to unsubscribe or to provide information in addition to an e-mail address is now illegal. For some, this poses big changes.

The designated sender rule can impact marketers using co-registration services or providing multiple parties opportunities to participate in their e-mail communications. The sole sender appearing in the From line becomes the designated sender of the e-mail and bears the responsibility for all participating advertisers in complying with the key provisions of CAN-SPAM. The designated sender must process the opt-outs for all partners listed. Its impact comes when the subscriber simply replies to the e-mail message to unsubscribe. If a marketer includes many partners in an e-mail message, then the sender will need to either unsubscribe the recipient from all the partners’ lists or take the recipient to a Web page for this purpose.

The third rule might make things easier for marketers. The Act has been changed to satisfy the requirement that a commercial e-mail display a valid physical address. Marketers can now use an accurately registered post office box or a private mailbox established under US Postal Service regulations.

The last change stipulates that the term “person” doesn’t necessarily mean an actual, lone human. “Person” now applies to individuals, groups, unincorporated associations, limited or general partnerships, corporations, non-profits or other business entities. Each of these organizations, when sending e-mail, must offer an opt-out and comply with CAN-SPAM. This rule change could impact nonprofits and associations that use e-mail as a service update or as a channel for raising funds.

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