Further Comments to the Federal Trade Commission
From the National Consumers League
Regarding the CAN-SPAM Act Rulemaking
Project No. R411008
April 9, 2004

Introduction

            The National Consumers League (NCL), a nonprofit organization founded in 1899 to identify, protect, represent, and advance the social and economic interests of consumers and workers, has previously submitted comments in this rulemaking about the creation of a “National Do Not E-mail” (DNE) registry. Now NCL wishes to comment in regard to some of the other issues that have been raised in this proceeding.

Determining whether the “primary purpose” of an email is commercial

            As NCL noted in its March 31, 2004 comments about the DNE, many consumers do not want to receive unsolicited emails advertising products or services. NCL is concerned about the potential for marketers to solicit consumers under the guise of doing something else, such as providing educational information.

A hypothetical example may help to illustrate this concern. The manufacturer of a weight-loss product, No-Flab, sends unsolicited emails to consumers containing general advice about how to lose weight – proper diet, daily exercise, etc. – and including a link for more information. The link brings recipients to the Web site for its product. Should this be considered a “commercial electronic message?” NCL would argue that it should. Under the CAN SPAM Act of 2003 (the Act), providing a link to a commercial entity does not make an email “commercial” per se, but taking the situation as a whole it is clear that the company is not primarily engaged in an altruistic public education campaign about obesity. Rather, the “primary purpose” of the electronic message is obviously to sell No-Flab.

The Federal Trade Commission (FTC) should be careful not to define “primary purpose” so narrowly that it cannot take the full context of the message into account in determining whether it falls within the definition of “commercial.” Perhaps FTC guidelines with examples would be helpful.  

“Transactional” or “relationship” messages

A similar concern arises with “transactional” or “relationship” messages when they include advertisements for products or services that the recipients haven’t already agreed to purchase or that are not for “updates” or “upgrades” of previously purchased goods or services. “Transactional” or “relationship” messages have a special stature that exempts them from the definition of commercial electronic mail precisely because they are not intended to be vehicles for marketing. The FTC should reinforce this point in any regulations.

Ten-business-day time period for processing opt-out requests

            NCL is unaware of any problems with the ten-business-day time period and would strongly oppose lengthening it. Entities that send commercial electronic messages should have the capacity to remove email addresses pursuant to opt-out requests within this reasonable time period.

Forward-to-a-friend and similar marketing campaigns

            NCL believes forward-to-a-friend and similar marketing campaigns should be prohibited under FTC regulations. Any encouragement to forward a commercial message is clearly “inducement” to initiate it on behalf of the marketer. Since the marketer cannot know to whom the message will be sent, it cannot ensure that the rights of recipients who have opted out of receiving commercial electronic messages from it won’t be violated. Indeed, these types of campaigns invite violations of the privacy rights that are provided by the Act.

            Referral marketing, where people are asked to provide personal information about other prospects, does not pose quite the same problem because the marketer can, and we believe must, cross-check to determine whether those prospects have opted out of receiving commercial electronic messages from it before sending any solicitations. However, the FTC should require marketers to clearly disclose to people who are asked to provide information about prospects that the information will be used for marketing purposes. They should also disclose whether or not the information will be shared with others and under what circumstances.

The first messages from the marketers to the referred parties should clearly disclose that their information has been provided by someone else and provide the names and contacts information of the people who referred them. This would enable the recipients to ask the people who referred them not to do so again if they don’t want their information to be provided for marketing purposes. Obviously these messages are subject to all of the other requirements for unsolicited commercial emails.

Definition of “valid physical postal address of the sender”

            THE QUESTION HERE IS WHETHER A POST OFFICE BOX SHOULD BE ALLOWED – I WOULD ADD WHETHER A PRIVATE MAIL BOX SHOULD BE ALLOWED, TOO. WHAT DO YOU THINK? WHAT IS THE INTENT OF THE ADDRESS? IS IT JUST TO ALLOW THE RECIPIENT TO COMMUNICATE WITH THE SENDER BY MAIL? OR IS IT TO ENABLE THE RECIPIENT TO KNOW WHERE IN THE WORLD THE SENDER IS?

Conclusion

            While many of the unsolicited commercial emails that people receive at present may be fraudulent, NCL believes that legitimate companies will increasingly use email for marketing purposes, as the Act allows. Therefore, it is crucial for the FTC to set firm rules for how marketing by email can be conducted in order to ensure that the privacy rights of individuals are respected.