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ABM files comments with FTC on
CAN-SPAM

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American Business Media in mid-September filed a new round of comments with the Federal Trade Commission in relation to rules for implementing the CAN-SPAM Act, which went into effect Jan. 1. Particulars of the law still to be addressed in implementing regulations include how to determine whether the "primary purpose" of an e-mail is commercial. ABM in its comments said it supports a test that looks at the "net impression of a reasonable recipient." An alternate viewpoint held by others, ABM said, is that the intent of the sender should be paramount through application of a "but for" test—that is, whether the e-mail would have been sent "but for" its commercial content. ABM counsel David Straus said in a communication to the membership that "a newsletter containing and supported by advertising could well fail the 'but for' test," because many would not be sent "but for" the advertising that supports the newsletter. He said that relying on the overall impression of such a newsletter, while equally subjective, is preferable. "Unfortunately, there's no way to develop an objective, bright-line test to implement a statute that uses the term, 'primary purpose,' " Straus said.

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