One year to the day after the original CAN-SPAM bill was signed into law, the Federal Trade Commission issued final regulations specifying what constitutes an email with "commercial primary purpose".
The ruling closely follows the text of the proposal released on August 13, with important new specifics that seek to dispel the ambiguity around determining the primary purpose of dual-use messages, said Catherine Harrington-McBride, staff attorney for the FTC's Bureau of Consumer Protection.
For single-use messages, either commercial or transactional relationship, the primary purpose is simple enough to determine. However, it is the criteria addressing dual-use messages that will most affect email marketers and advertisers.
First, emails containing both commercial and transactional relationship content are considered commercial if a recipient reasonably interpreting the subject line would likely conclude that the message contains commercial content. It would also be considered commercial if the email's transactional relationship content does not appear in whole or substantial part at the beginning of the body of the message.
Secondly, for emails that contain both commercial content and content that is neither commercial nor transactional or relationship, the primary purpose will be deemed commercial if a recipient reasonably interpreting the subject line or body of the message would likely conclude the primary purpose is commercial.
The key factors relevant to that interpretation include the placement of commercial content in whole or substantial part in the beginning of the body of the message; the proportion of the message dedicated to commercial content; and how color, graphics, type size, and style are used to highlight commercial content.
"The primary purpose criteria will enable businesses to understand their responsibilities under the CAN-SPAM Act," Harrington-McBride said. "It sets forth the criteria by which emailers can determine whether their messages fall within the commercial category."
Whereas the text of the initial CAN-SPAM law left important questions as to what qualifies as commercial intent open to debate, the new ruling is strikingly more detailed, said Elaine O'Gorman, vice president of Silverpop, an email marketing solutions provider.
"As for the text of the ruling, it's very clear," O'Gorman said. "I think it's the specificity of detail, of what portion of the email commercial content appears, whether it's subject line, or top of the body of the email message, that will really take email marketers by surprise."
On a practical level, adhering to the new regulations is likely to be simple for most businesses, according to Trevor Hughes, executive director of the E-mail Service Provider Coalition.
"While the new legal language is helpful, the fact remains that compliance with CAN-SPAM is not that painful," Hughes said. "For most companies that engage in email marketing, they probably won't have to change their existing practices too much."
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