Date: Feb 01, 2005
Many members of the converting industry have been following the new CAN SPAM law and its impact on e-mail communications. CAN SPAM covers unsolicited electronic mail messages in which the primary purpose is the commercial advertisement or promotion of a commercial product or service (including content on an Internet Web site operated for commercial purposes). CAN SPAM requires the following:
As expected, the Federal Trade Commission (FTC), on December 16, issued its Final Rule on when the "primary purpose" of electronic messages is commercial. Because this rule is deemed a major rule under the Small Business Regulatory Enforcement Fairness Act (SBREFA), it will take effect on March 28.The primary purpose of mixed commercial and non-commercial content will be determined based on the "net impression" of the message on the recipient. Consequently, the Rule will have a broad impact on an array of electronic messages.
The Agency has established the following criteria to determine if the primary purpose of your e-mail is "commercial" and thus whether you must follow the CAN SPAM requirements for commercial electronic communications.
While some industry members argued for an exemption for business-to-business communications, the FTC did not rule on the issue. The FTC will address this and other issues in a future discretionary rulemaking. So for now, businesses should use care to provide accurate sender and subject information and honor opt-out requests.
Commercial Messages: If an e-mail contains only content advertising or is promoting a commercial product or service, the primary purpose of the e-mail would be deemed commercial.
Transactional/Relationship Messages: If an e-mail contains only "transactional or relationship" content, such as content that facilitates or confirms a previous commercial transaction or provides warranty, recall, safety, or similar information, it is an exempt transactional/relationship message. Including additional advertising copy in the message, such as an offer for a discount on additional purchases, would make it a mixed transactional/commercial message.
Mixed Transactional/Commercial Messages: If an e-mail contains both commercial and "transactional or relationship" content, the primary purpose of the e-mail would be deemed commercial if (a) a recipient "reasonably interpreting the subject line of the message" would conclude the message advertises or promotes a commercial product or service; or (b) the transactional/relationship component does not appear at or near the beginning of the message. For this to be deemed primarily a transactional/relationship message, the subject line must not contain a reference to a commercial advertisement or promotion for a commercial product or service, and the transactional/relationship content must appear in whole or substantial part at the start of the body of the message.
Mixed Commercial/Other Messages: If an e-mail contains both commercial content and content that is neither commercial nor transactional/relationship (such as entertainment), the primary purpose of the e-mail would be deemed commercial if:
Once an e-mail is deemed to have a "commercial" primary purpose, it must comply with the relevant opt-out requirements. CAN SPAM does not prevent any company from sending unsolicited e-mails with a commercial primary purpose. Adopting and honoring preferences about contacts makes good business sense, regardless. The FTC will be providing additional guidance on aspects of CAN SPAM under a further discretionary rulemaking, most likely to be initiated later this year.
Reproduced with the permission of Paper, Film & Foil CONVERTER magazine (312.726.2802). Copyright © 2005 by Intertec Publishing. All rights reserved.
Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; firstname.lastname@example.org.