The Federal Trade Commission (FTC) has issued final regulations that seek to provide guidance in determining whether e-mail messages have a commercial primary purpose and thus are subject to the CAN-SPAM Act (the Act), which took effect on January 1, 2004.

According to the FTC, e-mail messages that contain only the commercial advertisement or promotion of a commercial product or service will be deemed to have a commercial primary purpose. This is not terribly surprising.

For e-mail messages that contain commercial content and transactional or relationship content, the FTC has determined that the primary purpose will be deemed commercial if a recipient reasonably interpreting the subject line of an e-mail likely would conclude that the message contains commercial content, or the e-mail's transactional or relationship content does not appear in whole or substantial part at the outset of the body of the message. This "first blush" type approach seems sensible.

With respect to e-mail messages that contain commercial content and content that is neither commercial nor transactional or relationship oriented, the FTC has decided that the primary purpose will be considered commercial if a recipient reasonably interpreting the subject line of the message likely would conclude that the message contains commercial content, or a recipient reasonably interpreting the body of the message likely would conclude that the primary purpose of the message is commercial.

Certain factors could be kept in mind as part of this analysis, such as the placement of the commercial content in whole or in substantial part at the outset of the body of the message; the proportion of the message dedicated to commercial content; and the manner in which color, graphics, type size and style are used to highlight commercial content. This overall framework appears reasonable.

Finally, and fairly obviously, the FTC has concluded that e-mail messages that contain only transactional or relationship content will be deemed to have a transactional or relationship, and not a commercial, primary purpose.

While the foregoing guidance is generally helpful, it will not be a perfect science in applying this guidance to specific e-mail messages. For example, it will not be always easy to ascertain what an objective recipient "reasonably interpreting" the subject line or the body of an e-mail message would conclude in terms of the primary purpose of a given message. Still, the FTC's guidance helps more than it hurts in terms of shaping and addressing e-mail conduct.

Eric Sinrod is a partner in the San Francisco office of Duane Morris (www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. His column appears Wednesdays at USATODAY.com. His Web site is www.sinrodlaw.com, and he can be reached at . To receive a weekly e-mail link to Mr. Sinrod's columns, please send an e-mail with the word Subscribe in the Subject line to .

Reprinted here with permission from USAToday.com.