MoFo Privacy Minute
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FTC Chairman Maureen Ohlhausen that “[r]egulations can be important tools in protecting consumers, but when they are outdated, excessive, or unnecessary, they can create significant burdens on the U.S. economy, with little benefit.”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”), 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:
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.
 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.