June 4, 2008

FTC ISSUES FINAL RULES
IMPLEMENTING CAN-SPAM ACT

The FTC has issued final rules in its discretionary rulemaking proceeding addressing compliance questions raised by the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act).

The rulemaking, which was released May 12, took more than three years for the FTC to complete. It provides helpful clarification on a number of tricky compliance issues raised by the CAN-SPAM Act’s confusing definitions. The rulemaking appears to reflect an appreciation by the FTC that the CAN-SPAM Act definitions should not be interpreted in a
hyper-technical manner that burdens legitimate commercial email.

The highlights of the new rules are as follows:

  • Most importantly, the FTC modified the definition of the term “sender” in its rules to make it easier for just one of multiple parties advertising in a single email message to be responsible for complying with the Act’s opt-out requirements.


  • Second, the FTC decided to reject a suggestion in its notice of proposed rulemaking that would have shortened the deadline for honoring opt-out requests from ten to three days.


  • Third, the final rule clarifies that a sender may comply with the Act’s requirement to provide a valid physical address in an email by using either a post office box or private mailbox, provided that the sender meets Postal Service registration requirements for the box in question.


  • Fourth, the final rule includes a definition of the word “person” that clarifies the types of entities to which the Act applies and includes nonprofit associations that send commercial email.


  • Fifth, email recipients cannot be required to pay a fee, provide information other than their email address and opt-out preferences or take any steps other than sending a reply email message or visiting a single Internet web page to opt out of receiving future messages from a sender.


  • Finally, clarifications in an accompanying Statement of Basis and Purpose address the FTC’s interpretation of a “transactional or relationship message”; its determination not to designate additional “aggravated violations” under the Act; and how the rules apply to “forward-to-a-friend” email marketing campaigns.

We have prepared a concise discussion of these modifications and clarifications. Please read it here.