Client Alert

Review of CAN-SPAM Rule Part of a Larger Plan

MoFo Privacy Minute

28 Jun 2017

The Federal Trade Commission (FTC) has been conducting regular reviews of its rules and guidelines on a rotating basis since 1992, but a recent announcement of such reviews came with a bit more fanfare. Specifically, last week’s FTC press release noting a number of rules up for review included a statement from acting FTC Chairman Maureen Ohlhausen that “[r]egulations can be important tools in protecting consumers, but when they are outdated, excessive, or unnecessary, they can create significant burdens on the U.S. economy, with little benefit.”

One of the rules up for review is the FTC rule implementing the CAN-SPAM Act (the “CAN-SPAM Rule”),[1] which, among other things, defines the relevant criteria to determine whether a particular email message is subject to the limitations and disclosure requirements on marketing emails; identifies which advertiser is responsible for compliance when a message contains advertising from more than one company; and restricts senders of marketing emails from imposing certain conditions on an opt-out request.

Ordinarily, a rule like the CAN-SPAM Rule would not necessarily be ripe for significant comment, given that it does not impose much in the way of requirements beyond nonmisleading disclosures and the provision of an unsubscribe option—but these are not necessarily ordinary times. Perhaps, therefore, comments on the CAN-SPAM Rule will bear fruit. Commenters may echo the acting chairman’s desire to scale back regulations that overburden businesses. In that regard, the FTC invites comments on a number of issues, including:

  • General issues, such as whether there is a continued need for the CAN-SPAM Rule, the identification and evidence of its costs and benefits, whether modifications would reduce costs and increase benefits, and whether changes in relevant technology or economic conditions warrant modifications to the rule; and
     
  • Specific issues, such as whether the categories of messages that are treated as transactional or relationship messages (and therefore not subject to the Rule’s disclosure and opt-out requirements) should be expanded or contracted, and whether the 10-day time frame for honoring opt-out requests should be decreased or increased.

Comments on the CAN-SPAM Rule are due to the FTC on or before August 31, 2017, and will be made publicly available at https://www.ftc.gov/policy/public-comments.


[1] Formally known as the Controlling the Assault of Non-Solicited Pornography and Marketing Act, 15 U.S.C. §§ 7701-7713. The FTC’s rule implementing the CAN-SPAM Act is at 16 CFR Part 316.

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