In June 2017, the FTC initiated a regulatory rule review of the Controlling the Assault of Non-Solicited Pornography and Marketing Rule (“CAN-SPAM Rule” or “Rule”), seeking information about the Rule’s costs and benefits as well as its economic and regulatory impact. The FTC received 92 responses to its request for public comment. Last week, the FTC announced it had completed its review of the Rule and public comments it received, and decided to keep the Rule exactly as it is.
The CAN-SPAM Act (“Act”) became effective as of January 1, 2004. The Act regulates the transmission of all commercial email messages and authorizes the FTC to issue regulations concerning certain provisions of the Act. Pursuant to this authority, the FTC promulgated the CAN-SPAM Rule, which has evolved in a number of significant ways since 2004. Key provisions of the Rule require that commercial emails: (1) contain accurate header and subject lines; (2) identify themselves as advertisements; (3) include a valid physical address; and (4) offer recipients a way of opting out of future messages.
Beyond a general request for comment recommending modifications to the Rule, the FTC also sought comment in response to three specific issues—whether the FTC should: (1) expand or contract the categories of messages that are treated as “transactional or relationship messages”; (2) shorten the time period for processing opt-out requests; and/or (3) specify additional activities or practices that constitute “aggravated” violations. Based on the comments it reviewed, the FTC concluded that a continuing need exists for the Rule, the Rule benefits consumers, and the Rule does not impose significant costs to businesses. With respect to the three specific issues outlined above that the FTC also sought comment on, the FTC determined no rule modification was warranted.
Although the FTC decided retain the CAN-SPAM Rule without modification, in light of the breadth of concerns raised in the public comments, the FTC plans to review its consumer and business education materials to determine if any revisions are warranted. In the meantime, the FTC has maintained the status quo. Should you have any questions regarding your business’ compliance with the CAN-SPAM Rule, the Venable team is here to provide guidance.