FTC Adopts Labeling Standard For Sexually Explicit E-mail Messages

On April 13, 2004, the FTC issued a final rule on labeling standards for email messages containing sexually explicit material. The rule is in response to a directive in the recently enacted CAN-SPAM Act of 2003. The final rule, which was modified slightly from the proposed rule, will become effective on May 19, 2004. While this rule is applicable only to a subset of commercial emails, it is significant since it addresses several First Amendment challenges that are applicable to ongoing rulemaking proceedings.

The rule applies to email messages that contain either visual images or graphical descriptions of sexually explicit content.

  • The most prominent aspect of the rule is the requirement that emails containing sexually oriented material must include the phrase “SEXUALLY-EXPLICIT:” at the beginning of the subject line. In circumstances where a tag such as “fwd:” or “re:” is automatically placed in front of the label, such as when the original recipient of the email goes to forward the message, it is that recipient’s duty to remove the tag from the subject line in order to comply with the rule.
  • The subject line must also not contain any sexually oriented material. In addition, these messages must also contain a “brown paper wrapper” to protect recipients when they open the email messages, i.e., the initially viewable area upon opening the message must contain only the phrase “SEXUALLY-EXPLICIT:”, identification that the message is an advertisement or solicitation, a notice of the opportunity and the ability to opt-out of future messages, and a valid physical postal address of the sender.
  • Any instructions on how to access the sexually oriented material must be preceded by a statement notifying the reader to delete the message without following the instructions in order to avoid viewing the sexually oriented material.
  • The rule exempts situations where the recipient has given his or her consent to receive the email messages.

The FTC defended the imposition of these labeling requirements in response to commenters who challenged the rule’s constitutionality on First Amendment grounds. According to the FTC, the rule withstands a First Amendment challenge since it serves “two substantial government interests: (1) protecting the privacy right of individuals to be free from unwanted and unwelcome commercial intrusions into their homes, and (2) supporting parental supervision of the materials to which their children are exposed.” In addition, the FTC argues that the rule does not prohibit the sending of sexually oriented material that is lawful, but merely prohibits the sexual graphics or text from being placed in the subject line or the initially viewable area of the message. The opening page may contain sexually oriented material so long as it is not in the initial viewing area.

First Amendment concerns are applicable not just to this rule but to ongoing rulemakings underway at the FTC and the FCC. Both agencies currently are seeking comment on rules to clarify and expand upon various aspects of the CAN-SPAM Act. For instance, the FTC is considering whether all commercial emails should be labeled and, if so, in what manner. Such a labeling requirement would have to withstand even greater scrutiny since it would apply to all commercial email. The FCC is currently seeking comment on rules restricting wireless spam but potentially exempting wireless carriers from these restrictions. If an exemption eventually is carved out, it may be defended from constitutional challenge on the ground that an agency need not regulate all aspects of a problem before it may make progress on any front. In addition, the FCC would be targeting those wireless emails that are most problematic.

For a detailed analysis of the issues on which the agencies are currently seeking comment, see our Update titled FTC and FCC Seek Comments on Implementing the CAN-SPAM Act of 2003.

For more information on the Act itself, see our Update titled Congress Passes Anti-Spam Legislation.

If you would like to discuss the effect of the CAN-SPAM Act or any of the final or proposed rules of the FTC or FCC on your business or marketing practices, please contact us.