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As of Jan. 1, all businesses that advertise products or services electronically need to comply with new federal requirements for sending commercial e-mail. The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or CAN-SPAM Act, generally supersedes the array of anti-spam legislation in place in more than 35 states, including most provisions of the onerous California anti-spam law that was enacted last year. CAN-SPAM generally regulates the transmission of “commercial electronic mail messages.” These are e-mails whose primary purpose is advertising or promoting a commercial product or service. CAN-SPAM distinguishes commercial e-mail messages from “transactional or relationship messages,” which are messages whose primary purpose is to (i) facilitate or confirm an agreed-upon commercial transaction; (ii) provide warranty or safety information about a product purchased or used by the e-mail recipient; (iii) provide certain limited information regarding an ongoing commercial relationship; (iv) provide information related to employment or a related benefit plan; or (v) deliver goods or services to which the e-mail recipient is entitled under the terms of an agreed-upon transaction. Because it may be difficult to discern based on the act’s provisions whether a specific e-mail is “commercial,” Congress instructed the Federal Trade Commission to issue regulations within one year on how to determine the primary purpose of an e-mail message. Until the regulations are issued, businesses will have trouble determining whether many e-mail communications are “commercial” or “transactional or relationship” messages. Where an e-mail combines an advertising pitch with a transactional message, the safest course pending issuance of the regulations is to treat the e-mail as a commercial message and comply with the appropriate provisions of CAN-SPAM. CAN-SPAM contains a number of requirements generally applicable to senders of commercial e-mail messages. The new law:

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