FTC Defines Commercial E-mail Messages

Both the subject line and the content of the message will determine whether an electronic message is a commercial e-mail subject to regulation under the CAN-SPAM Act under rules adopted by the Federal Trade Commission (FTC).

The FTC has issued its final regulations that determine how to determine the “primary purpose” of an electronic message. In so doing, the FTC also declined to exclude non-profit entities from the CAN-SPAM Act. The FTC found there are four categories of electronic messages:

• Messages that contain only commercial advertisements or promotion of a commercial product or service always will have a commercial “primary purpose.
• Messages that contain both commercial content and “transactional or relationship” content. These messages will be considered “commercial” if either (1) the recipient reasonably concludes from the subject line that the message contains commercial content or (2) the “transactional or relationship” content does not appear in whole or substantial part at the beginning of the body of the message.
• Messages that contain both commercial content and content that is neither “commercial” or “transactional or relationship” will be considered “commercial” if either (1) the recipient reasonably concludes from the subject line that the message contains commercial content or (2) the recipient reasonably would conclude that the primary purpose of the message is commercial.
• Messages that contain only “transactional or relationship” content will be considered non-commercial. The FTC found that the subject line is a reliable indicator of an email message’s primary purpose and that recipients make decisions whether to open the email based on the subject line.

The FTC reasoned that since the CAN-SPAM Act prohibits deceptive subject lines, they should be considered reliable indicators of the content. In adopting the rule, the FTC rejected calls that non-profit entities be exempt. Instead, the FTC noted by way of example that “CAN-SPAM may apply to a trade association’s email messages promoting a seminar because a seminar may be considered a ‘commercial product or service’ if attendees must pay an admission charge.”