Oh, those niggling details.
Can-Spam has been around for over a year, and DMers still don’t have answers on some big questions.
For example, just what constitutes a transactional message (one based on an existing relationship)? These e-mails are exempt from Can-Spam’s opt-out requirement.
But the FTC, which is supposed to clarify such issues by Dec. 17, isn’t necessarily going to give DMers what they want.
For starters, The commission shows no signs of agreeing with the industry view that newsletters and subscription renewal notices qualify as transactional messages. What does pass muster? “Bills or account information,” said Jim Conway, vice president-government relations for the Direct Marketing Association, speaking at the Folio: Show.
Newsletters are especially dicey because many carry advertising, and fail what the FTC has called its net impression test. Their primary purpose is not informational (in the FTC’s view).
“If you start with an ad (in your newsletter), it indicates it’s commercial and not editorial,” said Rita Cohen, senior vice president-government and regulatory policy for the Magazine Publishers of America.
The FTC might deal with this by basing the definition on the proportion of commercial to non-commercial matter in newsletters.
“We said that did not make sense, and pointed to magazines,” Cohen said.
Then there’s the related question of who is responsible for putting in the opt-out in a joint marketing message.
“Right now, only sender has to comply,” Conway said. People don’t want to be the sender.” DMA members are “vexed” by this question, he added.
Cohen continued that “a lot of advertisers are urging the FTC to deal with it quickly. People are using the opt-out for every advertiser they have.”
What kind of progress has the FTC made? “Frankly, they’re kind of noodling on it,” Conway said. “They have to clarify the sender question and primary purpose.”
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