FTC Defines “Commercial Email” Under CAN-SPAM (Email Marketing)   12/16/2004 - 1,445 views, 1 Comment

As they were charged with doing under the CAN-SPAM Act of 2003, the Federal Trade Commission has today announced the official definition of “Commercial Email” as it applies to CAN-SPAM.

This is critical because much of the requirements and prohibitions of CAN-SPAM apply only to commercial email.

So, without further ado, here is what the FTC says is considered to be “commercial email”, which must comply with CAN-SPAM:

1. 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;

2. 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: 1) a recipient reasonably interpreting the subject line of the e-mail would likely conclude that the message contains commercial content; or 2) 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;

3. 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: 1) a recipient reasonably interpreting the subject line of the message would likely conclude that the message contains commercial content; or 2) 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 the placement of commercial content in whole or in substantial part at 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; and

4. 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 bottom line here is that unless your email has a non-commercial subject line, and the content is both initially and primarily not commercial in nature, or if the recipient perceives it to be commercial in nature, it’s going to be held to be commercial email, and subject to the requirements of CAN-SPAM.

For those of you involved with the sending of commercial email, Aunty highly recommends picking up ISIPP’s excellent ebook, “CAN-SPAM and You: Emailing Under the Law”, and if you are primary commercial mailers, you should consider picking up their full course CAN-SPAM Compliance Pack. [Note: Aunty has a professional relationship with ISIPP.]

You can read more about the FTC ruling at the FTC website.