[Code of Federal Regulations]
[Title 16, Volume 1]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 16CFR316.3]

[Page 413-414]
 
                     TITLE 16--COMMERCIAL PRACTICES
 
                   CHAPTER I--FEDERAL TRADE COMMISSION
 
PART 316_RULES IMPLEMENTING THE CAN-SPAM ACT OF 2003--Table of Contents
 
Sec. 316.3  Primary purpose.

    (a) In applying the term ``commercial electronic mail message'' 
defined in the CAN-SPAM Act, 15 U.S.C. 7702(2), the ``primary purpose'' 
of an electronic mail message shall be deemed to be commercial based on 
the criteria in paragraphs (a)(1) through (a)(3) and (b) of this 
section: \1\
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    \1\ The Commission does not intend for these criteria to treat as a 
``commercial electronic mail message'' anything that is not commercial 
speech.
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    (1) If an electronic mail message consists exclusively of the 
commercial advertisement or promotion of a commercial product or 
service, then the ``primary purpose'' of the message shall be deemed to 
be commercial.
    (2) If an electronic mail message contains both the commercial 
advertisement or promotion of a commercial product or service as well as 
transactional or relationship content as set forth in paragraph (c) of 
this section, then the ``primary purpose'' of the message shall be 
deemed to be commercial if:
    (i) A recipient reasonably interpreting the subject line of the 
electronic mail message would likely conclude that the message contains 
the commercial advertisement or promotion of a commercial product or 
service; or
    (ii) The electronic mail message's transactional or relationship 
content as set forth in paragraph (c) of this section does not appear, 
in whole or in substantial part, at the beginning of the body of the 
message.
    (3) If an electronic mail message contains both the commercial 
advertisement or promotion of a commercial product or service as well as 
other content that is not transactional or relationship content as set 
forth in paragraph (c) of this section, then the ``primary purpose'' of 
the message shall be deemed to be commercial if:
    (i) A recipient reasonably interpreting the subject line of the 
electronic mail message would likely conclude that the message contains 
the commercial advertisement or promotion of a commercial product or 
service; or
    (ii) A recipient reasonably interpreting the body of the message 
would likely conclude that the primary purpose of the message is the 
commercial advertisement or promotion of a commercial product or 
service. Factors illustrative of those relevant to this interpretation 
include the placement of content that is the commercial advertisement or 
promotion of a commercial product or service, in whole or in substantial 
part, at the beginning of the body of the message; the proportion of the 
message dedicated to such content; and how color, graphics, type size, 
and style are used to highlight commercial content.
    (b) In applying the term ``transactional or relationship message'' 
defined in the CAN-SPAM Act, 15 U.S.C. 7702(17), the ``primary purpose'' 
of an electronic mail message shall be deemed to be transactional or 
relationship if the electronic mail message consists exclusively of 
transactional or relationship content as set forth in paragraph (c) of 
this section.
    (c) Transactional or relationship content of e-mail messages under 
the CAN-SPAM Act is content:
    (1) To facilitate, complete, or confirm a commercial transaction 
that the

[[Page 414]]

recipient has previously agreed to enter into with the sender;
    (2) To provide warranty information, product recall information, or 
safety or security information with respect to a commercial product or 
service used or purchased by the recipient;
    (3) With respect to a subscription, membership, account, loan, or 
comparable ongoing commercial relationship involving the ongoing 
purchase or use by the recipient of products or services offered by the 
sender, to provide--
    (i) Notification concerning a change in the terms or features;
    (ii) Notification of a change in the recipient's standing or status; 
or
    (iii) At regular periodic intervals, account balance information or 
other type of account statement;
    (4) To provide information directly related to an employment 
relationship or related benefit plan in which the recipient is currently 
involved, participating, or enrolled; or
    (5) To deliver goods or services, including product updates or 
upgrades, that the recipient is entitled to receive under the terms of a 
transaction that the recipient has previously agreed to enter into with 
the sender.