FTC issues final CAN-SPAM rules.

The U.S. Federal Trade Commission (FTC) has issued its final regulations specifying what constitutes an e-mail with "commercial primary purpose." The CAN-SPAM Act, which took effect January 1, 2004, required the commission to issue regulations "defining the relevant criteria to facilitate the determination of the primary purpose of an electronic mail message."

While the text of the CAN-SPAM law left open to debate important questions about what qualifies as commercial intent, the new ruling is more detailed. It establishes criteria for determining the primary purpose of various kinds of e-mail messages. For e-mail messages that contain

* only the commercial advertisement or promotion of a product or service ("commercial content"), the primary purpose of the message will be considered commercial

* both commercial and "transactional or relationship" content as defined in the act and in the final rule, the primary purpose of the message will be considered commercial if a recipient would likely conclude from the subject line that the message contains commercial content or if the e-mail's "transactional or relationship" content does not appear at the beginning of the body of the message

* both commercial content and content that is neither "commercial" nor "transactional or relationship," the message's primary purpose will be deemed commercial if a recipient would conclude from the subject line that the message contains commercial content or that the primary purpose of the message is commercial. Relevant factors include the placement of commercial content at the beginning of the message body; the proportion of the message dedicated to commercial content; and how color, graphics, type size, and style are used to highlight commercial content

* only "transactional or relationship" content, the message will be deemed to have a "transactional or relationship" primary purpose

The final rule's criteria for defining primary purpose excludes "newsletters and other such publications from regulation as commercial e-mail messages." In addition, the FTC said that subscription periodicals delivered via e-mail fall within the "transactional or relationship message" category of goods or services "under the terms of a transaction that the recipient has previously agreed to enter into with the sender." The commission noted, however, that if the delivered e-mail consists solely of advertising, it would be a commercial e-mail because no product or service is provided.