FTC’s public comment process yields no changes to email marketing rule

A Contrived Reduction of Nouns, Yielding Mnemonics

If there were some sort of literary prize for legislative acronym-engineering, the poor assistant responsible for inventing the title of the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003 wouldn’t even earn a nomination.

After all, Congress has produced some real winners: The Robo Calls Off Phones (Robo COP) Act, for instance, or the Preventing All Your Bucks from Aiding non-Citizens is Key (PAYBACK) Act come to mind. If you want to explore a statistical analysis of congressional acronym use, check out data analyst Noah Veltman’s “Congressional acronym abuse, 1973-2013” page. But CAN-SPAM? Now, that is kind of lame. OK, sure, we need to “can” spam, as in “toss it in the trash.” But it’s just as likely to be read as “Yes! Go ahead, you can spam people; why not?”

Shame, unnamed legislative assistant. We hope you moved on to better titles, like the “Dairy Augmentation for Increased Retail in Yogurt products (DAIRY) Act.”

Monument

Lame nomenclature aside – back to marketing law.

This Federal Trade Commission (FTC) rule associated with the CAN-SPAM Act is a venerable feature of the internet regulatory landscape. Implemented in the silver age of online advertising, when pornographers spammed email servers worldwide, CAN-SPAM set tough new standards for commercial email, including upfront disclosure of X-rated content, clear unsubscribe mechanisms and strict sending rules.

The rule created by the FTC to implement CAN-SPAM was modified several times and then stabilized after 2008. Nine years later, in 2017, the commission opened the rule up for public comment as part of its regular review process.

The Takeaway

That yielded, more or less, not much at all.

Taking the FTC’s summary report at face value, the CAN-SPAM rule seems to be a remarkably popular (or at least durable) piece of regulation. The original call for public comment opened a general query on the usefulness and the future of the rule as well as specific questions about the time period for opt-out windows, a request for new activities that might be considered “aggravated violations,” and the meaning of the “transaction or relationship message” category.

As of mid-February 2019, the actual public comment page seems to be down, but the summary suggests that the rule remains popular – out of 92 comments from a mix of individuals, consumer and trade groups, and service providers, a mere six registered a desire to shut down and replace the rule.

“Despite some comments recommending that the Commission adopt modifications to the Rule, there is insufficient evidence in the record to demonstrate that such modifications are necessary and would, in fact, help consumers,” the report concludes in a sentence that might stand in for the whole report.