Final rules on just what defines email as subject to the CAN-SPAM Act were handed down December 16 by the Federal Trade Commission, but the FTC left the original requirement for sexually explicit labeling intact.
Following three months of public comment, the FTC handed down the rules without deviating from their original proposals in an official notice they published in March under the rules of CAN-SPAM. The only changes, the FTC said, involved an added criterion for determining an e-mail's main purpose if it has only transaction or relationship content.
"[We make] clear that [we do] not intend to regulate non-commercial speech through the rule," the FTC said in their December 16 announcement.
Email messages with only commercial advertisements would be considered commercial, while those with both commercial and "transactional or relationship" content would be called commercial if either a recipient could conclude it was more commercial than anything, and if the "transactional or relationship" content doesn't appear "in whole or substantial part" in the message body.
Those email messages with commercial content and content that could not be called transactional or relationship-related would be considered commercial if the recipient could "reasonably interpret" the subject line as indicating commercial e-mail, or if the recipient could "reasonably interpret" the body as having a mostly commercial cause, the commission said.
"Factors relevant to [that] interpretation," the FTC continued, "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 for e-mail messages that contain only "transactional or relationship" content, the message will be deemed to have a "transactional or relationship" primary purpose."
