Editorial: From Spam to Supplements

By Len Monheit
[email protected]

There are several aspects of the CAN-SPAM Act set to pass in the United States which have interesting parallels to current experiences in the dietary supplements industry. I'd like to speak about a few of the details and some implications of this CAN-SPAM Act specifically, since it is a good idea for business professionals to have an idea of what to expect. I think that many of you will see the parallels to our current industry environment and the complexities facing both industry and regulators. Acting to solve the fundamental problems can be almost impossible - new legislation typically retrenches the best practices already in use without providing an adequate deterrent to those causing some of the most significant headaches.


The legislation, a single Federal rule, is set to replace some 37 state laws with a very worthwhile objective as its intent - reducing the volume of unsolicited e-mails received and providing a framework where the initiators of this unwanted correspondence could be penalized.

And some of these objectives will be met by this new regulation. For instance, the Act criminalizes clearly wrongful e-mail practices. The awareness and dialogue among various discussion participants including software and technology vendors has resulted in solutions which 'almost' keep up with spammers ability to find new ways to gather and use e-mail addresses to attack and annoy recipients. Hopefully new legislation will help reduce spoofing of e-mail addresses and messages.

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The law will outlaw practices such as falsifying headers, hijacking e-mail accounts or computers and creating e-mail or IP addresses just to send spam. Senders of commercial e-mail must have a valid return address and at minimum, provide an unsubscribe option for recipients and must have a list suppression mechanism to ensure suppressed data does not generate future e-mails. In talking about permission, the bill contains the term 'expressed consent' which can be taken to mean that viewers have taken an active choice to receive messages. The law also allows Service Providers to actually block mail that violates their terms and conditions, meaning that a significant amount of power is placed in the hands of these ISP's.

The objective of the legislation is to allow consumers to effectively use e-mail, know and trust senders and to allow FTC to take further action to clarify appropriate definitions and labels which must be used to identify the e-mail.

As with any law, its effectiveness will be determined by the level of enforcement and an environment where the punishment acts as a deterrent. However, a series of international issues may make the new legislation impossible to enforce, despite the fact that other governments will either follow the US lead, or will recognize the US laws in some way.

It is obvious that this law is only the beginning - an early step to combat a growing problem. More action will be required and the agencies must show a will to enforce violators with support offered from the courts.

Skeptics say that the law will not make a bit of difference to consumers, claiming instead that fraudulent e-mail will continue to rise. They say that spewing out billions of messages is so cheap and easy that even if legislation reduces the number of spammers by half, inbox clutter won't be affected at all. Under the legislation, the government must find spammers, the spammers must be within the jurisdiction of U.S. courts, and then a case (hopefully, highly public) must be prosecuted. But if the rewards and fun factors continue to be so high, these actions won't discourage spammers at all. They'll continue to seek open and low risk hosts and move their activities offshore.

Many of the current spam activities are already illegal yet they persist anyway. Examples include medications, pornography, and products from all over the world claiming to be supplements. If current regulations and laws have not curtailed their activities, new ones obviously won't either.

Beyond E-mail

As with any law, companies taking a high road will honor it and take a closer look at establishing not just decent practices, but best practices. The outliers will continue to operate until enforcement activity catches up and all the loopholes, anywhere in the world, have been closed. I attended sessions in Toronto last week where the guidelines for the new Canadian regulations covering Natural Health Products were being explained by Health Canada Natural Health Products directorate representatives. Given the fact that these individuals had committed the time to attend a participate, it was nonetheless surprising that some of them (and you knew it from their questions) were trying to think of ways to circumvent, if not outright sabotage the regulations.

Interesting Parallels indeed!

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