Advertising Law

The Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) Rule is here to stay, the Federal Trade Commission announced after completing its first review.

Enacted in 2003 and effective since January 1, 2004, the CAN-SPAM Act regulates the transmission of all commercial email messages and authorizes the FTC to issue mandatory rulemakings and discretionary regulations. Over the years, the agency has promulgated multiple Rule provisions.

In 2017, the FTC initiated a regulatory review of the Rule and requested public comment on whether it continued to serve a useful purpose and whether modifications were necessary to improve its application.

The agency received a total of 92 comments from consumer groups, industry and trade associations, providers of email-related services, and an Internet service provider, with the majority coming from individual consumers. Commenters “overwhelmingly” favored keeping the Rule, the FTC said, with only six explicitly advocating for rescission.

“In light of the comments received, the Commission concludes that a continuing need exists for the Rule,” the FTC wrote in the Federal Register. “The comments predominantly indicate that the Rule benefits consumers and does not impose significant costs to businesses. Accordingly, the Commission will retain the Rule.”

The FTC also considered possible tweaks to the Rule, such as expanding or contracting the definition of “transactional or relationship messages.” For example, the American Bankers Association recommended that the FTC clarify the definition to include two types of emails frequently sent by banks to existing customers: educational messages and invitations to events.

But the agency noted that either type of message could be commercial, depending on the facts and subject matter, and that no Rule modification was warranted.

The agency also determined that proposals to shorten the time period for processing opt-out requests failed to show how the current ten-business-day period has negatively affected consumers, while suggestions that the Rule also include an opt-in approach to commercial email messages “would be beyond the text and scope of the Act.”

Several other ideas—extending opt-out obligations to third-party list providers, blocking all unsolicited spam from servers outside the United States and providing email recipients a private right of action to enforce CAN-SPAM Act violations, among others—were also rejected by the FTC.

“The comments overwhelmingly: (1) favor retention of the Rule and assert that there is a continuing need for the Rule; (2) conclude that the Rule benefits consumers; (3) assert that the Rule does not impose substantial economic burdens; and (4) conclude that the benefits outweigh the minimal costs the Rule imposes,” the FTC concluded. “Despite some comments recommending that the Commission adopt modifications to the Rule, there is insufficient evidence in the record to demonstrate that such modifications are necessary and would, in fact, help consumers.”

Why it matters: The FTC had little difficulty in finding a continuing need for the CAN-SPAM Act Rule and declined to adopt any modifications or changes to the Rule. The agency did note that it plans to review and consider revising its consumer and business materials to address some of the issues raised during the review process to ensure that the Rule’s protections and requirements are easily understood.



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