The CAN-SPAM Act, which went into effect on January 1, 2004, contains multiple regulations for email whose "primary purpose" is commercial activity. Since its enactment, several compliance issues have been raised, including the need for further clarification on the "primary purpose" rulemaking.

This week, the Federal Trade Commission proposed criteria for defining which email communications are "commercial" under CAN-SPAM. The FTC has proposed a basic "primary purpose" test, which in summary includes:

1. If the message contains only content that advertises or promotes a product or service.
   
2. If the recipient would consider the message advertising or promoting a service by reading the subject line, or if the "transactional or relationship" content does not appear at the beginning of the email.
   
3. If the recipient would conclude the message to be advertising or promoting a service, even if the message is blended commercial and transactional.

The exact criteria is explained in the August 13 Federal Register Notice. The FTC is also seeking public comments on the proposed criteria. Comments will be accepted until September 13, 2004. Marketers are encouraged to submit their own thoughts/comments at https://secure.commentworks.com/ftc-canspam/.