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E-mail restrictions take effect

November 22, 2010
File this under "government in action": Legislation to prohibit unsolicited commercial e-mail took effect Jan. 1, but the Federal Trade Commission has not yet issued rules that fully define the compliance requirements. Nevertheless, compliance is mandatory. The "can spam" legislation- an acronym for the "Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003"-imposes certain restrictions on the use of com- mercial e-mail messages, but excludes restrictions on transactional or relationship e-mails. A commercial e-mail message is defined as "any electronic mail message, the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet Web site operated for a commercial purpose)." When transmitting commercial email, dealers must prominently offer their customers the opportunity to opt out of any future commercial e-mail solicitations. Dealers also must ensure that each commercial e-mail solicitation (1) identifies the message as an advertisement or solicitation, (2) includes a functioning return e-mail address which the recipient can use to submit an opt-out request, and (3) provides a valid physical postal address for the dealer's business. Dealers must process opt-out requests within 10 business days of receipt and ensure future e-mail solicitations are not sent to the requesters. A business is not violating the new law if the functioning return e-mail address is unexpectedly and temporarily unable to receive messages for a reasonable time. Mere inclusion in an e-mail message  of a reference, or link, to a Web site of commercial entity does not, by itself, categorize the message as commercial e-mail if the contents or circumstances of the e-mail indicate a "primary purpose" other than the advertisement or promotion of a commercial product or service. The FTC will issue regulations by the end of 2004 that define the "primary purpose" of an e-mail. By June, the FTC will establish a "do-not-e-mail" registry.