Today the FTC announced that it is undertaking a review of its CAN-SPAM Rule, which sets out the requirements for sending commercial e-mail messages.  Among other things, the CAN-SPAM Rule requires that senders of commercial e-mails provide recipients a mechanism to opt out of receiving commercial e-mails, honor opt-out requests within 10 business days, and include specific disclosures in the body of the commercial messages.

The review is part of the FTC’s standard process of reviewing its rules and industry guides on a 10-year schedule to ensure that they remain relevant and are not unduly burdensome.  The goal of these reviews typically is to determine whether rule modifications are needed to address public concerns or changed conditions, or to reduce undue regulatory burden.

Consistent with these goals, the FTC specifically is asking for comments on the following topics:

  • The economic impact and benefits of the CAN-SPAM Rule;
  • Possible conflict between the CAN-SPAM Rule and state, local, or other federal laws or regulations (note that the CAN-SPAM statute preempts state commercial e-mail laws, except to the extent they prohibit “falsity or deception”); and
  • The effect any technological, economic, or other industry changes have had on the CAN-SPAM Rule.

Unlike some other FTC rules and guides that are grounded in the FTC’s general authority to prohibit unfair and deceptive practices under Section 5 of the FTC Act, the CAN-SPAM Rule implements requirements contained in the CAN-SPAM statute.  Consequently, while there are certain aspects of the CAN-SPAM Rule that the FTC can modify, the statutory requirements cannot be changed without congressional amendment.

Written comments are due on August 31, 2017.

Photo of Lindsey Tonsager Lindsey Tonsager

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the…

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the U.S. Congress, and other federal and state regulators on a proactive basis, she has experience helping clients respond to informal investigations and enforcement actions, including by self-regulatory bodies such as the Digital Advertising Alliance and Children’s Advertising Review Unit.

Ms. Tonsager’s practice focuses on helping clients launch new products and services that implicate the laws governing the use of endorsements and testimonials in advertising and social media, the collection of personal information from children and students online, behavioral advertising, e-mail marketing, artificial intelligence the processing of “big data” in the Internet of Things, spectrum policy, online accessibility, compulsory copyright licensing, telecommunications and new technologies.

Ms. Tonsager also conducts privacy and data security diligence in complex corporate transactions and negotiates agreements with third-party service providers to ensure that robust protections are in place to avoid unauthorized access, use, or disclosure of customer data and other types of confidential information. She regularly assists clients in developing clear privacy disclosures and policies―including website and mobile app disclosures, terms of use, and internal social media and privacy-by-design programs.