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As required by the CAN-SPAM Act, the Federal Trade Commission today announced a proposal to establish a mark or notice that will be required for inclusion in spam that contains sexually oriented material. The purpose of the mark or notice is to inform the recipient that a spam message contains sexually oriented material and to facilitate filtering of such spam messages. Establishment of a mark to accomplish these purposes is one of several actions that Congress has directed the Commission to undertake by enacting the CAN-SPAM Act, which was signed into law on December 16, 2003.

A Federal Register Notice to be published shortly will seek public comment on the proposal. The CAN-SPAM Act requires the Commission to prescribe the mark or notice within 120 days after passage of the Act. Because of the statutory deadline, the comment period ends on February 17.

The FTC proposes to adopt a rule prescribing the phrase “SEXUALLY-EXPLICIT-CONTENT: ” as the mark or notice mandated by the CAN-SPAM Act. The proposed rule also would follow the intention of the CAN-SPAM Act to protect consumers from unwitting exposure to pornographic 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” would be what a recipient would initially see when opening a message containing sexually oriented material. It would include the prescribed mark or notice, certain other specified information, and no other information or images. The proposed rule would include a “definitions” section to clarify that certain terms taken from the Act and appearing in the rule have the definitions prescribed by particular referenced sections of the Act. Finally, the proposed rule would include a severability provision, so that in the event a portion of the rule is struck, the remainder of the rule will stay in effect.

The Commission vote to approve publication of the Federal Register notice was 5-0.

Questions or comments can be directed to or to Jonathan Kraden at 202-326-2614.

Copies of the federal register notice are available from the FTC’s Web site at and also from the FTC’s Consumer Response Center, Room 130, 600 Pennsylvania Avenue, N.W., Washington, D.C. 20580. The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint, or to get free information on any of 150 consumer topics, call toll-free, 1-877-FTC-HELP (1 877-382-4357), or use the complaint form at The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.

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