Founders Series: Anti-SPAM Rules – Part II

In the first post on this topic, we offered several recommendations for companies to keep in mind should they wish to send commercial messages. Continuing our look at the Anti-SPAM Act, we now look at instances where these recommendations are not applicable.

Exclusions

The recommendations offered in Post I are applicable to unsolicited commercial email. They do not apply to any “transactional or relationship message,” which is defined under the CAN-SPAM Act as any email message, the primary purpose of which is:

  • To facilitate, complete or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;
  • To provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;
  • To provide information with respect to a subscription, membership, account, loan or comparable ongoing commercial relationship involving the ongoing purchase or use of products or services offered by the sender to the recipient;
  • To provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating or enrolled; or
  • To deliver goods or services, including product updates or upgrades that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.

If you are unsure which category your email communications fall into, the FTC issued a final Rule setting forth criteria for determining the primary purpose of various kinds of email messages. These criteria include: 

  • For email 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;
  • For email 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: (i) a recipient reasonably interpreting the subject line of the email would likely conclude that the message contains commercial content; or (ii) the email’s “transactional or relationship” content does not appear in whole or substantial part at the beginning of the body of the message;
  • For email 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: (i) a recipient reasonably interpreting the subject line of the message would likely conclude that the message contains commercial content; or (ii) 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
  • For email messages that contain only “transactional or relationship” content, the message will be deemed to have a “transactional or relationship” primary purpose.

Future Issues

You should consult with an attorney if you have additional questions regarding anti-SPAM issues.

It is important that companies remain vigilant about changes in the legislative landscape. The CAN-SPAM Act allows, but does not require, the FTC to investigate the creation of a “do not spam” registry similar to the “do not call” registry.

We hope this overview of the anti-SPAM Act proves helpful!

 
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