The Federal Trade Commission issued the final regulations to discriminate among commercial and non-commercial bulk email messages.

The final FTC Rule defines the messages that fall under the provisions of the CAN-SPAM Act. The CAN-SPAM Act regulates both commercial messages and transactional or relationship messages. In some opinions, the final FTC Rule still leaves a lot of room for argue and dispute.

There Are Only Two Situations That Can Be Categorized Free of Doubt

1. messages containing only adds which are commercial messages;
2. messages containing only transactional or relationship information which are non-commercial messages.

A transactional and/or relationship message contains for example information about the delivery procedure for an online order. In between there are many situations that can lead to misconstructions. In this case, the reasonable interpretation of the receiver is to be trusted.

FTC states it does not intend to regulate non-commercial speech through The Rule.

The Criteria for Determining the Primary Purpose of an Email Message

These can also be found at FTC Press Room.

• 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;
  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;
  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;
• For e-mail messages that contain only “transactional or relationship” content, the message will be deemed to have a “transactional or relationship” primary purpose.

The final Rule is an improved version of the Federal Register notice of proposed rulemaking (NPRM) published on August 13, 2004.

The final Rule incorporates the “Sexually Explicit Labeling Rule” as promulgated in April 2004.