Almost a full year after the Can-Spam anti-spam legislation went into effect, the Federal Trade Commission (FTC) finally put forth its definitions of just what comprises a commercial email. Already endorsed by the Direct Marketing Association, the criteria are unlikely to trouble most marketers. The criteria specifically address the as-yet gray area of whether or not an email should be treated as commercial if it involves a relationship with a past customer or subscriber, especially when such "transactional" messages are mixed with ads and promotions. By the new FTC criteria, these emails escape the stricter measures put on commercial email, so long as the subject line and top content of the email focuses on the transaction rather than a promotional message.
The final FTC Rule:
- For e-mail 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 e-mail 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: 1) a recipient reasonably interpreting the subject line of the e-mail would likely conclude that the message contains commercial content; or 2) the e-mail’s “transactional or relationship” content does not appear in whole or substantial part at the beginning of the body of the message;
- For e-mail 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: 1) a recipient reasonably interpreting the subject line of the message would likely conclude that the message contains commercial content; or 2) 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 e-mail messages that contain only “transactional or relationship” content, the message will be deemed to have a “transactional or relationship” primary purpose.
