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FTC postpones effective date of CAN-SPAM rule provisions

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By Carol Krol

The Federal Trade Commission on Wednesday announced it has postponed the effective date of rule provisions it adopted Dec. 16 establishing criteria for determining whether the primary purpose of an e-mail message is commercial.

The FTC had determined in December that the provision would become effective on Feb. 18. However, the federal government's Office of Management and Budget deemed the provision a "major rule," which means the changes cannot take effect until at least 60 days after they are submitted to Congress. Therefore, the revised effective date is now March 28.

"It has to do with the potential economic impact of the rule," said Allen W. Hile, assistant director-division of marketing practices at the FTC.

The Small Business Regulatory Enforcement Fairness Act defines a "major rule" as "one that OMB [Office of Management and Budget] finds has resulted in or is likely to result in (a) an annual effect on the economy of $100 million or more; (b) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (c) significant adverse effects on competition, employment, investment, productivity, innovation or on the ability of US-based enterprises to compete with foreign-based enterprises in domestic and export markets."

The FTC's December press release was removed from the agency’s Web site, it said, to be sure there is no confusion about the effective date.

The clarification was the one sticking point in the anti-spam law that had been hanging in the balance, according to e-mail marketers. One executive said the postponement buys marketers more time to make any necessary adjustments.

"The postponement gives the industry time to ensure that it's adjusting to the new interpretations, " said Jerry Cerasale, senior VP-government affairs at the Direct Marketing Association, in an e-mail. "We view it as an ongoing effort by the FTC to avoid inadvertently creating law violators out of legitimate companies who simply need a little more time to meet the new provisions."

The criteria established in December indicated that messages that are a result of a transaction with the recipient are exempt from the regulations imposed on commercial e-mail via the CAN-SPAM Act. That means marketers sending bills, account statements and e-mail newsletters that might contain ads, are all considered transactional messages and thus allowable under the CAN-SPAM Act, which took effect Jan. 1 2004. Copies of the Federal Register notice are available from the FTC's Web site at  http://www.ftc.gov.

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