The final rule's criteria for defining primary purpose excludes "newsletters and other such publications from regulation as commercial e-mail messages." In addition, the FTC said that subscription periodicals delivered via e-mail fall within the "transactional or relationship message
" category of goods or services "under the terms of a transaction that the recipient has previously agreed to enter into with the sender." The commission noted, however, that if the delivered e-mail consists solely of advertising, it would be a commercial e-mail because no product or service is provided.
If the e-mail contains both commercial content and content that falls under the FTC's transactional or relationship message
category, it would be considered commercial if either a) the recipient concludes from its subject line that the message advertises or promotes a product or service or b) the transactional or relationship content is not located at or near the beginning of the e-mail.
The FTC is also interested in comments on four other pieces of discretionary rule making established in the act: 1) the definition of "transactional or relationship message
"; 2) the 10 business days granted to honor opt-out requests; 3) the practices that should be considered "aggravated violations"; and 4) the question of whether additional regulations are needed to help organizations and individuals comply with the rule making.
The act carves out one category of messages, called "transactional or relationship messages," which are statutorily exempt from the "commercial" category.
Most of CAN-SPAM's requirements do not apply to transactional or relationship messages. Transactional or relationship messages could include customer invoices, service order confirmations and information about customer loyalty programs.
For example, IFA recommended that e-mail sent by franchise systems be defined as "transactional or relationship messages
," which are allowed under the CAN-SPAM Act.