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FTC Tightens Up CAN-SPAM Rules

The Federal Trade Commission has updated its regulations under the CAN-SPAM Act of 2003, making it easier to identify the sender of messages containing brand placements from multiple companies.

The rules, which the FTC passed unanimously and announced yesterday, come after three years of considering public comments on its provisions under CAN-SPAM -- officially known as the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003.

The tweaks are aimed at giving consumers a clearer sense of who is sending unwanted marketing messages.

E-mails promoting travel packages, for instance, often contain branded advertisements from multiple companies, such as airlines, hotels and car-rental services. It was often unclear who was sending these messages, which made the issue of who should be responsible for processing the opt-out murky, said Matt Wise, president and CEO of online marketing firm Q Interactive.

"When they wrote CAN-SPAM, it was a challenge to create an obligation for the opt-out," Wise told InternetNews.com. "The legislation was a bit vague, and created situations where people didn't know who should be responsible for the opt-out."

Under the new rules, multiple advertisers collaborating on an e-mail campaign will have the opportunity to designate one as the sender, which will be required to identify itself in the "from" line.

The e-mails must contain a mechanism for a user to opt out of receiving future messages, which the designated sender will then be responsible for processing.

The FTC left the deadline for complying with an opt-out request unchanged at 10 days. Wise said his firm typically complies with opt-out requests within three days, which he said is a common time frame throughout the industry.

Wise added that he hopes the new rules for multi-brand messages will streamline the unsubscribe process, with marketing companies such as his own taking on the responsibilities for maintaining opt-out lists.

It is unclear whether that practice will be permitted under the FTC rules, however.

"To be a sender under the act, you have to initiate the e-mail and your product or service has to be promoted in the e-mail," Janis Kestenbaum, a staff attorney with the FTC's Bureau of Consumer Protection, told InternetNews.com.

Those criteria for what constitutes a sender have not changed, she said.

She would not comment on specific relationships between advertisers and their marketing firms, though the requirement that a designated sender must be advertising its own product in the e-mail would appear to preclude ad companies such as Wise's from claiming that status.

Also under the new rules, advertisers will be able to satisfy the requirement for including a postal address with a P.O. box or a private address. Previously, they had to include a corporate street address in their messages.

The update will also include language to simplify the requirements of an opt-out process. Marketers will not be able to require consumers to pay a fee or furnish any data other than an e-mail address to process an opt-out request.

Kestenbaum said the main impetus behind that update was to prevent companies from using consumers' request to opt out as a springboard to extort more information about them.

Similarly, marketers will not be able to require consumers to visit more than one Web site to process an opt-out request, she said.

The new rules will take effect 45 days after the FTC publishes the update in the Federal Register, which Kestenbaum said it plans to do within the next several weeks.

Antispam measures