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Dreher Tomkies LLP
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2750 Huntington Center
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Columbus, Ohio 43215
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FTC SEEKS COMMENTS ON "PRIMARY PURPOSE"
OF AN ELECTRONIC MAIL MESSAGE

The Federal Trade Commission published a Notice of Proposed Rulemaking and Request for Public Comment on August 13, 2004, seeking input on its proposed criteria for determining the "primary purpose" of an electronic mail message as specified in the mandatory rulemaking required by the CAN-SPAM Act, related questions and other general questions on the impact of the proposed rule. The term "primary purpose" is incorporated in the Act’s definition of the term "commercial electronic mail message" which includes "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content of an Internet web site operated for a commercial purpose)." A message that meets the definition of a "transactional or relationship message" is excluded from the definition of a "commercial electronic mail message."

Based on the comments received in response to the March 11, 2004 Advanced Notice of Proposed Rulemaking, as well as its law enforcement experience, the FTC has proposed criteria that apply to three categories of email messages: those that include only commercial content, those that include both commercial content and transactional/relationship content, and those that include both commercial content and content which is neither commercial nor transactional/relationship.

First, if the email message includes only content that advertises or proposes a product or service, the primary purpose would be deemed to be commercial.

Second, if the email message includes both commercial content and transactional/relationship content, the primary purpose would be deemed to be commercial if either (1) a recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a product or service or (2) a recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is to advertise or promote a product or service.

Third, if the email message includes commercial content and content that is neither commercial nor transactional/relationship, the primary purpose of the message would be deemed commercial if either (1) a recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a product or service or (2) a recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is to advertise or promote a product or service.

The August 13, 2004 Notice does not address the discretionary rulemaking issues raised in the March 11, 2004 Advanced Notice of Proposed Rulemaking, which will be addressed in a separate Notice.

Comments must be submitted by September 13, 2004.
If you would like additional information or assistance in drafting comments, please do not hesitate to contact us.

Mike Tomkies and Carolyn Melvin