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FTC ISSUES FINAL RULE DEFINING WHAT CONSTITUTES A "COMMERCIAL ELECTRONIC MAIL MESSAGE"

The Federal Trade Commission has issued a final rule clarifying the "primary purpose" of an electronic mail message. The term "primary purpose" is incorporated in the definition of "commercial electronic mail message" (i.e., "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service"). Because the CAN-SPAM Act generally applies to "commercial electronic mail messages," identifying the "primary purpose" of an e-mail is critical in determining whether the Act applies to that e-mail.

The final rule is substantially similar to the proposed rule published on August 13, 2004. The criteria for determining the primary purpose of various kinds of e-mail messages set forth in the final rule include:

  • For e-mail messages that contain only the commercial advertisement or promotion of a commercial product or service ("commercial content"), the primary purpose of the message will be deemed to be commercial;
  • For e-mail messages that contain both commercial content and "transactional or relationship" content as set forth in the Act’s definition of "transactional or relationship message" and in the final rule, the primary purpose of the message will be deemed to be commercial if either: (i) a recipient reasonably interpreting the subject line of the e-mail would likely conclude that the message contains commercial content or (ii) the e-mail’s "transactional or relationship" content does not appear in whole or substantial part at the beginning of the body of the message;
  • For e-mail messages that contain both commercial content and content that is neither "commercial" nor "transactional or relationship," the primary purpose of the message will be deemed to be commercial if either: (i) a recipient reasonably interpreting the subject line of the message would likely conclude that the message contains commercial content or (ii) a recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is commercial. Factors relevant to this interpretation include (i) the placement of commercial content in whole or in substantial part at the beginning of the body of the message, (ii) the proportion of the message dedicated to commercial content and (iii) how color, graphics, type size and style are used to highlight commercial content; and
  • For e-mail messages that contain only "transactional or relationship" content, the message will be deemed to have a "transactional or relationship" primary purpose.

The "primary purpose" provisions of the rule will become effective on February 18, 2005.

Carolyn Melvin