FTC Postpones Effective Date of Can-Spam Rule Establishing Criteria for Determining “Primary Purpose” of E-Mail Messages
|January 13, 2005|
|16 CFR Part 316: Project No. R411008: Definitions and Implementation Under the CAN-SPAM Act of 2003: Statement of Basis and Purpose and Final Rule [pdf]|
The Federal Trade Commission has postponed the effective date of rule provisions it adopted December 16, 2004, establishing criteria for determining whether the primary purpose of an e-mail message is commercial. The Commission adopted these regulations in accordance with a specific requirement of the CAN-SPAM Act.
When the FTC adopted these rule provisions, it determined that they would become effective on February 18, 2005. Recently, however, the Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA) has determined that the provisions constitute a “major rule” under the Small Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. Sec. 801-808. Under that Act, a major rule cannot take effect until at least 60 days after it is published in the Federal Register and submitted to Congress. As a result, the Commission has revised the effective date in accordance with OIRA’s determination and the requirements of SBREFA. The revised effective date will be March 28, 2005. The Commission has made no other modifications to either the text of the rule provisions themselves or the statement of basis and purpose describing and explaining the provisions, the record supporting them, and the Commission’s rationale in adopting them.
The CAN-SPAM Act, which took effect January 1, 2004, requires the Commission to issue regulations “defining the relevant criteria to facilitate the determination of the primary purpose of an electronic mail message.” The FTC published a Federal Register notice of proposed rulemaking (NPRM) on August 13, 2004, seeking public comment on its proposed primary purpose criteria. The NPRM followed an Advance Notice of Proposed Rulemaking, issued on March 11, 2004, on this and other related issues raised by the CAN-SPAM Act.
As detailed in the Federal Register notice, which soon will be available, the final Rule is substantially similar to the proposal contained in the NPRM, but adds a criterion for determining the primary purpose of an e-mail message containing only “transactional or relationship” content, among other minor changes. The CAN-SPAM Act regulates both commercial messages and transactional or relationship messages. The notice makes clear that the Commission does not intend to regulate non-commercial speech through the Rule. The notice also addresses public comments received about the constitutionality of the CAN-SPAM Act, as well as of the FTC’s “primary purpose” criteria.
The final Rule sets forth criteria for determining the primary purpose of various kinds of e-mail messages. These criteria include: