FTC Reviewing CAN-SPAM Act

The Federal Trade Commission (FTC) has announced plans to review the CAN-SPAM Rule, the United States legislation that regulates commercial email messages.

Enacted in 2003, the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act codified requirements for email marketing aimed at protecting American consumers from spam. For example, the regulation requires email senders to include a physical address with their email, accurate header and subject line details, and a way for subscribers to opt out of future commercial email messages. 

“The digital landscape has evolved fairly dramatically over the past fifteen years, and it likely makes sense for the FTC to revisit CAN-SPAM and ensure that it still accurately reflects the current paradigm and continues to offer consumers the protections that it was designed to deliver,” says Nick Einstein, VP and principal analyst of email, social, and mobile marketing at The Relevancy Group.

In 2005, the FTC issued an update to the CAN-SPAM Act that differentiated commercial emails, or promotional emails, from transactional messages. Transactional messages, or emails sent to users after a specific user action, currently do not need to comply with CAN-SPAM regulation.

In the last dozen years, however, email communication has blurred the line between commercial and transactional messages. It is this “gray area” that Einstein believes the FTC could further clarify.

“Confirmation messages, receipts, recall notices, and others are clearly transactional, but some message streams, especially in a B2B context, straddle the line between ‘delivering goods or services as part of a transaction that the recipient already has agreed to’ and following up for marketing purposes,” explains Einstein. “I believe the current definitions make good sense but could be elaborated upon to provide better clarity for brands and marketers.”

Dennis Dayman, chief privacy and security officer at Return Path, agrees that it makes sense for the Federal Trade Commission to review the CAN-SPAM ruling. He cites new privacy email regulations that direct what marketers must do with consumer data, such as the General Data Protection Regulation (GDPR) in the European Union and Canada's Anti-Spam Law (CASL), as possible reasons for the review.

“Know that any changes that could come from any of this will require a congressional change and vote,” explains Dayman. “So, we are way off from any impactful changes considering the current legislative landscape and focus on so many other issues like Healthcare, Immigration, and Security. We are guessing that CAN-SPAM will be on the low end of the totem pole at this point.”

The FTC is soliciting feedback on a number of aspects to the regulation, including whether or not the ‘transactional’ email category should be expanded or contracted. Comments can be filed online or on paper, but the FTC must receive them by the end of August 2017.

“We too are filing comments and thoughts collected from all our members on the positive and or negative impacts CAN-SPAM has had on the past and today's email ecosystem,” says Dayman.

Dayman is the chairperson of the Email Sender and Provider Coalition, a coalition of email senders, providers, and digital marketers is “currently working on solutions to spam and deliverability concerns through a combination of legislative advocacy, technological development, and industry standards,” according to the group’s website.

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