June 19, 2008, 12:00 AM

FTC issues updated Can-Spam rule provisions

The U.S. Federal Trade Commission has issued updated provisions to the Can-Spam Act, including clarification of rules governing the opt-out process. The law, which took effect Jan. 1, 2004, regulates commercial e-mails.

The U.S. Federal Trade Commission has issued updated provisions to the Can-Spam Act, including clarification of rules governing the opt-out process. The law, which took effect Jan. 1, 2004, regulates commercial e-mails.

In the updated rule on consumer opt-out requests, e-mailers are prohibited from complicating the opt-out process by charging fees to consumers wishing to be added to opt-out lists. It also would prevent e-mail marketers from requiring consumers to provide information other than an e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet page to opt out of receiving future e-mail from a sender.

Requiring a log-in or asking for any other information to opt out is not permitted under this rule, says Rick Buck, director of privacy and ISP relations, eDialog Inc., an e-mail marketing services company that is a unit of GSI Commerce Inc. Buck reviewed the rulings in conjunction with the E-mail Sender and Provider Coalition.

Other updated provisions include:

• Clarifying the definition of what constitutes a “valid postal address.” Under the revised rules, businesses may publish a P.O Box or a private mail box in a commercial e-mail message to comply with the valid physical postal address requirement provided that either address is “accurately” registered with the U.S. Postal Service or with a commercial mail-receiving agency established pursuant to U.S.P.S. regulations.
• Clarifying the definition of ‘person’ to include individuals, groups, unincorporated associations, limited or general partnerships, corporations or other business entities. The FTC confirmed that both for-profit and not-for-profit businesses that send commercial messages are within the scope of the Can-Spam requirements, Buck says.
• Clarifying the definition of “sender.” The modified rules clarify which of multiple advertisers in a single message is responsible for compliance. The FTC’s clarification allows multiple marketers in a single e-mail to designate a single sender for purposes of Can-Spam compliance. “The benefit from this rule is that a single opt-out link and single valid physical postal address can be displayed in a multi-advertiser e-mail,” Buck says. “The sole sender appearing in the ‘from’ line becomes the designated sender of the e-mail and is responsible on behalf of all advertisers in the message for complying with key provisions of the act.”

However, if the designated sender in the “from” line fails to comply with Can-Spam, then all advertisers in the e-mail by definition will be deemed senders, making each liable for non-compliance, Buck adds.

“It’s important to note that the entity listed in the ‘from’ line must satisfy the definition of ‘sender,’ meaning that its own product or service is advertised or promoted in the e-mail message as well,” he says. “The FTC has proposed a ‘reasonable consumer expectation’ test to determine whether an advertisement or product promotion appears in an e-mail message so as to satisfy this rule.”

The new rules take effect in mid-July.

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