The CAN-SPAM Act went into effect January 1, restricting unsolicited commercial e-mail and imposing stiff penalties for violations. The Act defines “unsolicited e-mail” as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service” (including seminars, sponsorships, conferences, educational materials, membership drives, etc.).

Only recently has the Federal Trade Commission defined the criteria for determining the “primary purpose” of an e-mail.

The line between commercial and “transactional or relationship” e-mail is important because the latter (e.g., those that provide information regarding subscriptions, memberships, accounts, or similar ongoing relationships) are not subject to the Act's requirements.

FTC regulations effective March 28 explain what happens when your e-mails contain some commercial content and some transactional content? Here's how they define “primary purpose”:

1. If an e-mail message contains only the commercial advertisement or promotion of a commercial product or service (“commercial content”), its primary purpose is commercial.

2. If an e-mail message contains a mix of commercial content and transactional content, it is considered commercial if:

   • a recipient interpreting the subject line would likely conclude that the message contains commercial content; or

   • the e-mail's transactional content does not appear in whole or in substantial part at the beginning of the message.

3. If an e-mail message contains both commercial content and content that does not qualify as commercial or transactional, it will be deemed to be commercial if either:

   • a recipient interpreting the subject line would likely conclude that the message contains commercial content; or

   • a recipient interpreting the body of the message would likely conclude that the primary purpose of the message is commercial. Relevant factors include the placement of commercial content at the beginning of the message; the proportion … dedicated to commercial content; and how color, graphics [etc.] are used to highlight commercial content.

Organizations should establish a format for both commercial and transactional messages, and ensure that the proper format is used for every e-mail that is sent out. An opt-out system must be instituted.

There's a price to pay if you don't. While individual “spam” recipients cannot sue under the Act, a state attorney general is able to go after spammers for $250 per illegal e-mail message up to a maximum of $2 million (more if there are certain aggravating circumstances); and an ISP can sue in federal court for $100 per illegal e-mail message, up to a maximum of $1 million or more.

Jed R. Mandel is a partner in the Chicago-based law firm of Neal, Gerber & Eisenberg. He heads the trade and professional association practice.