Last month, my colleague Rebecca Lieb wrote about submitting comments to the Federal Trade Commission (FTC) regarding its Announced Notice for Public Rulemaking (ANPR). Good news! The submission deadline has been extended to April 20.
The bad news is the rulemaking could affect many email messages outside CAN-SPAM's commercial compliance elements.
We have only this one chance to respond to the FTC on these issues. Every voice counts. It's a welcome sign the FTC wants our input. Let's provide it.
The FTC will decide issues on a commercial email's "primary purpose." According to CAN-SPAM, a "commercial electronic mail message" is:any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).
The ANPR outlines criteria for whether an email's primary purpose is commercial: the ad's importance; the recipient's "net impression"; the incidental nature of the ad; the ad's financial value and support; and the sender's identity. The FTC's in-depth thinking on this issue is great. Each criterion can be viewed as relevant with different types of commercial messaging.
With so many types of commercial messaging, reaching a consensus that meets all needs is extremely difficult. Hence, the FTC must analyze the areas where the definitions aren't clear and try to clarify them.
Content Must Still Be King
When does an email cease to be newsworthy and become a solicitation? Why you subscribe to purely informational or editorial newsletters (like ClickZ's) may be evident, but some content falls into gray areas.
One is first- or third-party advertorials. First-party advertorials are fairly easy to spot and should be CAN-SPAM compliant, given they're typically from the product's manufacturer or a company rep and are clearly veiled sales pitches.
With third-party advertorials, the issue is difficult to decide. The third party may not directly benefit from the ad. Promoting a film with quotes from reviews is a good example. Is the email commercial if it's only sent by the distributor or exhibitor? Is it non-commercial if sent by a quoted critic or movie-related content outlet? Does the situation change if there is (or isn't) a link to buy movie tickets?
A second gray area involves informational products and services, the case with many business-to-business (B2B) situations. As noted in CAN-SPAM, B2B messaging is treated the same way as consumer messaging. When a research company sends a free executive summary for a new research report and directly solicits recipients to buy the report, does the value of the summary outweigh the commercial nature of the email?
What about an invitation to participate in a "free" corporate Webinar or event? The lure is free content, but obviously a sales pitch will be associated with the main event.
Finally, the most critical gray area is the cutoff point between content and ads. As stated in the ANPR, many criteria regard the financial value or incidental nature of the ad in proportion to content. One of my favorite emails is a sporadic alert from a major news media outlet. It contains one line of content and two or three paragraphs or graphics with ads. I opted in and appreciate the time-critical content. I don't appreciate the ad clutter. Often, I suspect the content isn't relevant enough for an alert message. This area may be a focal point for the FTC's rulemaking.
The Bundling Dilemma
Many issues surround correlating transactional or relationship messages with those of commercial email. Though the FTC will define transactional messaging, the primary purpose criteria will have the most relevant effect on whether an email is truly commercial. Questionable practices include ad placement within account balance, frequent-flier program, and other incentive program statements and up- or cross-sell ads within product purchase email, such as shipping notifications.
E-mail change of address (ECOA) and email append services are in question, such as email sent to an address that wasn't specified by the recipient during the subscription process, yet that reaches that same person. A company sends an email to a newly acquired address after the old address was deactivated. The email message contains no direct solicitation. Is it a commercial email?
I doubt the FTC will be able to clarify this. Discuss it with your legal counsel and with an ECOA or e-append provider prior to deployment.
Although primary purpose is required rulemaking, comments on discretionary rulemaking areas are also critical. These issues include the 10-day opt-out period; forward-to-a-friend/refer-a-friend models; multiple advertisers; and the pending reports on effectiveness, labeling, and incentivizing spam recipients to report violations.
Want more email marketing information? ClickZ E-Mail Reference is an archive of all our email columns, organized by topic.
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Ben Isaacson is the privacy and compliance leader for Experian, overseeing Internet and advanced technology privacy and compliance affairs across Experian Marketing Services products including CheetahMail, Digital Advertising Services, and Hitwise. Mr. Isaacson's previous roles include serving as the executive director of the Association for Interactive Marketing (AIM), a former DMA subsidiary. He regularly blogs at EmailResponsibly.com.
March 19, 2014