DOs and DON'Ts for Marketing Emails (CAN-Spam Act)

If you use email in your business practices, you should already be very familiar with the Controlling the Assault of Non-Solicited Pornography and Marketing Act.

15Jun

If you use email in your business practices, you should already be very familiar with the Controlling the Assault of Non-Solicited Pornography and Marketing Act, or CAN-SPAM Act. After all, if you violate the Act, you can find yourself on the losing end of a fine for more than $40,000.

The original goal of the CAN-SPAM Act is not to block every piece of spam (because this is an impossible goal), but to make spam illegal and dissuade spammers from sending it.

The CAN-SPAM rules set the laws for all sorts of commercial email, including telling you what requirements there are for commercial messages and what rights your recipients have for unsubscribing. Additionally, the CAN-SPAM Act establishes penalties for companies that violate the rules, and the consequences are pretty tough.

The Email Marketing Law

The official CAN-SPAM Act was signed into effect on January 1, 2004. The law preempted all current state laws. The original law was further clarified in 2008 with the Federal Trade Commission's Statement of Basis and Purpose and Final Discretionary Rule, or Final Rule. Today, staying compliant with email marketing laws is straightforward.

CAN-SPAM rules have broader coverage than just bulk emails. The law applies to "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service." This means your company newsletter or your email about a new product line or a big sale must comply with CAN-SPAM rules.

There is also no exception if your business email is going to a company and not to an individual. If you're selling or promoting something through an email, you should be following the email marketing law. End of story.

email marketing rules

The Requirements of the CAN-SPAM Rules

In order to remain on the good side of the email spam law, you'll want to be sure you're abiding by the following:

  • Your heading information may not be false or misleading. This means the fields "From,", "Reply-To," "To" and all routing information like your domain name and email address should correctly identify you or the business where the message initiated.
  • Your subject line must reflect the content of your message. No deceptive subject lines or "click bait" that don't appropriately state what the email is about.
  • Your message must be designated as an advertisement. You have some options how to make this happen, but the fact that the email is an ad must be stated clearly and conspicuously somewhere in the message.
  • Your location must be clearly stated. A valid physical postal address must be included in the email you're sending. Your address may be represented as a current street address, a post office box in the United States, or a private mail service that you've registered with a receiving agency in the United States.
  • You must allow for an opt-out. Marketing opt-out rules state that you must include a clear explanation of how an email recipient can opt out of getting emails from your company in the future. The opt-out option required by the marketing out-out rules should be easy for a standard reader to identify and understand. This might include a different color, font size, or prominent location within the email.
  • Opt-out requests never expire. If you have received an opt-out request from an email address, the opt-out time never expires. The only time you may use that email address is if you receive a new opt-in request from the same address.
  • Include a return email address or a means to allow recipients to communicate with you. This can be done in many ways. You can include a simple email address for opt-out requests, or you might include a menu to allow for opt-outs.
  • Be sure that you're not using incentives asking to forward your messages. Forwarded messages that contain incentives for forwarding contain commercial messages and don't usually contain the opt-out mechanism.
  • Be sure you are receiving opt-out messages. It means nothing to have an opt-out tool if you refuse to receive opt-out emails. Marketing opt-out rules require that you ensure that opt-out requests are in an Inbox folder of the email account that you routinely check and that the messages aren't being blocked or rerouted by a spam filter.
  • You must honor opt-out requests. Once you receive an opt-out request, you must process it within 10 days. Make sure that you or your customer service representatives properly process and honor the received opt-out requests in good faith. Discover how to boost your customer service skills to ensure compliance. Additionally, the marketing opt-out rules require that your opt-out mechanism work for at least 30 days following the email you send. Companies which do not respond quickly often find themselves on the receiving end of complaints. For example, as shown in Twinkledeals reviews and Doctor Oz complaints discovered on the PissedConsumer.com website.
  • You may not charge a fee or require additional information to honor an optout request. Marketing opt-out rules indicate that all that you may require for an opt-out request is an email address for the recipient. You may also require recipients to visit a single page on the internet as a condition to opt-out of a website.
  • Once a recipient has opted out of your emails, you may not use his/her email address in any form. You may not transfer that email address as part of a sale or a marketing list. You may not send additional messages. The only thing you may do is transfer the email address to a company that will assist you in complying with the CAN-SPAM email spam law.
  • Monitor how others act on your behalf. There are companies available to handle your email marketing. This means that they can send emails on your behalf, but you are not allowed to transfer your legal responsibility to your email marketing company. If a company working on your behalf makes mistakes, customers will certainly complain.

e-mail marketing law

CAN-SPAM Penalties

The CAN-SPAM Act is enforceable by the United States federal government. Every separate email that is found to be in violation of the email spam law can bring penalties of up to $40,654. This means that a series of emails sent over the period of a month can easily run into the hundreds of thousands or even millions of dollars in penalties. If you make these mistakes, you can expect them to be very expensive.

An additional concern for those outsourcing their marketing to other companies is that if a violation occurs, not only is the company that sent the message held legally responsible, but also the company whose product is promoted in the offending message. This means a bad marketing company can potentially drive you out of business based on fees and penalties alone.

Additionally, violators of the CAN-SPAM Act can face up to five years of imprisonment in the United States. There is also a private right of action clause within the law that allows internet service providers to sue your business if you are sending prohibited messages that are being received through their services.

If you need more information about how to stay complaint under the email spam law, the FTC has produced CAN-SPAM Act materials (https://www.ftc.gov/tips-advice/business-center/guidance/can-spam-act-compliance-guide-business).

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