DMA Politically Direct (Summer 2008): FTC Approves New CAN-SPAM Rules

August 27, 2008 — The Federal Trade Commission (FTC) has approved four provisions under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM) to clarify the requirements of the act, which took effect in 2004. The new provisions, which took effect July 7, 2008, address specific topics for marketers, including:

· All commercial email must contain a simple opt-out mechanism; fees for this service are prohibited;

· Clarification of the definition of “sender” must be provided when multiple advertisements are contained in a single email; and

· An accurately registered post office box or private mailbox can satisfy the requirement that a commercial email display a “valid physical postal address”; and the term “person” to clarify obligations under the act are not limited to natural persons.

In response to the FTC’s CAN-SPAM announcement, DMA President & CEO John A. Greco Jr. commended the agency for clarifying the act’s provisions. “The FTC’s clarification that allows multiple marketers within one email to designate a single sender for purposes of CAN-SPAM compliance presents a straightforward and practical solution that provides protections to consumers and is practical for business,” Greco said.

However, DMA sought clarification from the FTC regarding email ads containing multiple offers within the same email. Within the rulemaking, the FTC responded to DMA’s comments, explaining that marketers may designate one marketer from the group of advertisers as the “sender.”

According to the FTC, that designated sender must: be one of the group that advertises in the piece, be listed in the “From” line, and follow all rules set forth in CAN-SPAM. Further, if the sender does not follow all rules set forth in CAN-SPAM, all marketers with ads in the piece will be liable.

The FTC had suggested that the number of business days within which an opt-out request must be honored should be reduced. However, the FTC ultimately determined not to alter the current time period, and therefore the time-frame to remove an email address from distribution lists after an opt-out request remains at 10 days.

The new rules also offer further clarification on email offers that suggest a recipient forward the offer to an interested acquaintance. Under the rule, if the recipient forwards the email on his own volition, and without receiving compensation from the marketer, the forwarded email will not fall under CAN-SPAM.

However, if a discount or any form of compensation is provided to the original recipient for forwarding the email, then the original recipient is regarded as an agent of the marketer, and therefore the forwarded email must comply with CAN-SPAM.

On May 16, DMA hosted a members-only virtual briefing that was attended by 250 members, elaborating on these provisions, and providing analysis of the FTC’s rulemaking announcement. A recording of this briefing is available for DMA members at www.the-dma.org/government.

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