Cybertelecom Federal Internet Law & Policy An Educational Project

SPAM: Labels

Derived From: CRS Report to Congress, SPAM: An Overview of Issues Conncering Commercial Electronic Mail p 9 (May 14, 2007)

Another approach to restraining spam is requiring that senders of commercial e-mail use a label, such as "ADV," in the subject line of the message, so the recipient will know before opening an e-mail message that it is an advertisement. That would also make it easier for spam filtering software to identify commercial e-mail and eliminate it. Some propose that adult-oriented spam have a special label, such as ADV-ADLT, to highlight that the e-mail may contain material or links that are inappropriate for children, such as pornography.

CAN-SPAM Act Provision. The CAN-SPAM Act: (1) requires clear and conspicuous identification that a commercial e-mail is an advertisement, but is not specific about how or where that identification must be made; (2) requires the FTC to prescribe warning labels for sexually-oriented e-mails within 120 days of enactment; and (3) requires the FTC to submit a report within 18 months of enactment setting forth a plan for requiring commercial e-mail to be identifiable from its subject line using ADV or a comparable identifier, or by means of compliance with Internet Engineering Task Force standards. However, the clear and conspicuous identification that a commercial e-mail is an advertisement, and the warning label for sexually-oriented material, are not required if the recipient has given prior affirmative consent to receipt of such messages.

FTC Implementation. On May 19, 2004, an FTC rule regarding labeling of sexually oriented commercial e-mail went into effect. The rule was adopted by the FTC (5-0) on April 13, 2004. A press release and the text of the ruling are available on the FTC's website.25 The rule requires that the mark "SEXUALLY-EXPLICIT" be included both in the subject line of any commercial e-mail containing sexually oriented material, and in the body of the message in what the FTC called the "electronic equivalent of a 'brown paper wrapper.'" The FTC explained that the "brown paper wrapper" is what a recipient initially sees when opening the e-mail, and it may not contain any other information or images except what the FTC prescribes. The rule also clarifies that the FTC interprets the CAN-SPAM Act provisions to include both visual images and written descriptions of sexually explicit conduct.

On July 20, 2005, the FTC announced that it had charged seven companies with violating federal laws requiring these labels. Four of the companies settled with the FTC, which imposed a total of $1.159 million in civil penalties. U.S. District Court suits were filed against the other three companies.26

The act also required the FTC to submit a report to Congress on a plan for making commercial e-mail identifiable from its subject line, or to explain what concerns would lead the FTC to recommend against such a plan. That report was submitted in June 2005. It concluded that requiring UCE senders to use a prefix such as ADV probably would not result in less spam.

Experience with subject line labeling requirements in the states and in other countries does not support the notion that such requirements are an effective means of reducing spam.... Indeed, spam filters widely available at little or no cost ... more effectively empower consumers to set individualized email preferences to reduce unwanted UCE from both spammers and legitimate marketers. Mandatory subject line labeling, by comparison, would be an imprecise tool ... that, at best, might make it easier to segregate labeled UCE from unlabeled UCE. ... [I]t is extremely unlikely that outlaw spammers would comply with a requirement to label the email messages they send. By contrast, legitimate marketers likely would comply.... As a result ... labeled UCE messages sent by law-abiding senders would be filtered out. Meanwhile, unlabeled UCE messages sent by outlaw spammers would still reach consumers' in-boxes.27 (Italics in original.)

"Starting May 19th 2004, spam that contains sexually oriented material must include the warning “SEXUALLY-EXPLICIT: ” in the subject line or face fines for violations of federal law. The CAN-SPAM Act, passed by Congress in 2003, directed the Federal Trade Commission to adopt a rule requiring a mark or notice to be included in spam that contains sexually oriented material. The purpose of the notice is to inform recipients that a spam message contains sexually oriented material and to make it easier to filter out messages they do not wish to receive. Establishing the mark was one of several actions Congress directed the Commission to undertake by enacting the CAN-SPAM Act, which was signed into law on December 16, 2003. The CAN-SPAM Act required the Commission to prescribe the mark or notice within 120 days after passage of the Act.

... The FTC’s final rule prescribes the phrase “SEXUALLY-EXPLICIT: ” as the mark or notice mandated by the CAN-SPAM Act. The final rule follows the intention of the CAN-SPAM Act to protect email recipients from unwitting exposure to unwanted sexual images in spam, by requiring this mark to be included both in the subject line of any e-mail message that contains sexually oriented material, and in the electronic equivalent of a “brown paper wrapper” in the body of the message. This “brown paper wrapper” is what a recipient initially will see when opening a message containing sexually oriented material. The “brown paper wrapper will include the prescribed mark or notice, certain other specified information, and no other information or images.

There are four ways in which the final rule differs from the rule as originally proposed in the notice of proposed rulemaking:

The final mark is shorter than the proposed version. The Commission proposed that the mark be "SEXUALLY-EXPLICIT-CONTENT: ". Commenters opined that an excessively long mark would tend to crowd out all or part of what the sender might wish to say in the subject line. The Agency determined that a shorter mark,"SEXUALLY-EXPLICIT: ", likely can achieve the desired purpose as well, or nearly as well, as the longer mark; The final rule excludes sexually oriented materials from the subject line of a sexually explicit email message;

The final rule requires the mandatory disclosure of the sender’s “valid physical postal address” to be “clear and conspicuous,” like the other required disclosures; and

The final rule requires that the mark appear using elements of the American Standard Code for Information Interchange ("ASCII") character set, and a definition of the term “character” has been added as part of that change.

In addition, in response to a comment received from the Department of Justice, the Statement of Basis and Purpose clarifies that the Commission interprets provisions of the CAN-SPAM Act that direct the FTC to prescribe the mark to cover both visual images and written descriptions of sexually explicit conduct.

FTC Adopts Rule That Requires Notice That Spam Contains Sexually-Explicit Material, FTC 4/14/2004

Label for Email Messages Containing Sexually Oriented Material, Federal Trade Commission, Final rule, 69 Fed. Reg. 21024 ( April 19, 2004)

Fed Reg Notice

Comments should refer to "Proposed Mark for Sexually Oriented Spam, Project 
No. P044405." Comments 
filed in electronic form (except comments containing any confidential material) should be sent, as prescribed in Section C of the Supplementary Information section, to the following email box: adultlabel@ftc.gov 

POC: Jonathan Kraden, 326-2614 (email: 
adultlabel@ftc.gov), Division of Marketing Practices, Bureau of Consumer Protection, Federal 
Trade Commission, 600 Pennsylvania Avenue, N.W., Washington, DC 20580.

Requiring “ADV” Labeling for Commercial E-Mail Won’t Reduce Spam, FTC 6/15/2005

FTC Requiring Labels on Explicit Spam, TBO 5/20/2004

FTC Rule Requires Warning on Sexually Explicit Spam, FTC 5/20/2004

FTC: Porn spam must be labeled, CNET 4/14/2004

Warning: Naked people, USA Today 4/14/2004

FTC proposes adult spam labels, CNET 2/2/2004