Utilizing email lists to promote your product or services (or blog) is a tried-and-true marketing method frequently endorsed by savvy marketers (see here, for an example).
Tutorials abound on how to build that mailing list to grow your audience. Some experienced email marketers suggest offering something free in exchange for that coveted email address—like an eBook or access to exclusive content. Others use pop-up opt-in forms, and still others prefer the more passive approach of having the opt-in form ever present on a sidebar of the site.
Whatever your method, if you use a mailing list, you probably appreciate not only the time and work it takes to build that list, but also the relationship-building power that comes with it. But have you considered the legal implications of sending direct emails to your list subscribers?
In 2003, President Bush signed a bill into law called the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. The cleverly titled acronym, CAN-SPAM Act, sought to provide refuge to consumers weary of unsolicited emails. (It did not, however, make any attempt to shield the feelings of legitimate marketers who resent being lumped in the same category as pornographers.)
The CAN-SPAM Act, as the name implies, regulates spam. Whereas state laws that predated the federal CAN-SPAM act defined “spam” a variety of ways, including number thresholds or a solicited-unsolicited distinction, the CAN-SPAM Act governs the transmission of “commercial electronic mail messages,” which considers the primary purpose of the email rather than volume or whether an email has been solicited.
The Act, which itself does not use the word “spam,” defines “commercial electronic mail messages,” i.e. commercial email, as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” 15 U.S.C. § 7702(2)(A).
Thus, the first question any marketer with a mail list should ask is whether the emails sent to their subscribers qualify as a commercial email under the Act.
The Act also specifically excludes certain emails, called “transactional or relationship messages” from governance under the Act. A transactional or relationship message is a communication related to a transaction already agreed to, like sending a receipt, notifying of shipment or an account balance, or to deliver goods, among other things. (Read the entire exception at 15 U.S.C. § 7702(17).)
Put simply, if your commercial email has the primary purpose of business promotion (i.e. it is being sent to prospective clients or people you want to visit your commercial website), it is subject to the limitations of the Act. If it has the primary purpose of consummating a transaction or following up on one (i.e. it is being sent to clients in relation to a specific transaction or set of transactions), then most the Act’s rules don’t apply (but the Act still prohibits those emails from being false or misleading).
In reality, the distinction between a commercial email, transactional or relationship email, or a message that doesn’t fall into either of these categories is a difficult one to make. The FTC has published a series of questions and answers that can help you narrow down whether your emails constitute commercial emails under the CAN-SPAM Act. One point the FTC makes is that your intent as the sender is not as important as the recipient’s perception when it comes to identifying whether the email is commercial in nature.
Realize, though, that the email does not itself have to sell a product or service to be a commercial email. If your website is commercial in nature, and your email is designed to drive traffic to your website, then the email is probably still commercial in nature under the Act. Additionally, where the purpose of the email is not clear, the FTC leans towards a finding that an email is commercial in nature.
Now that you’ve established that those emails sent to your email list are probably commercial emails, here’s what you need to know to be in compliance with the act (see the compliance guide at the FTC’s website for more specifics):
- Keep your emails honest. It should be clear to the recipient of the email who the email is from, which includes the originating domain name (e.g. www.domainname.com) and email address, including the reply-to email address (e.g. email@example.com). Your subject lines should not be deceptive, either, in that they should bear a relationship to the content of your message.
- Make it known that your email is an ad. This one makes email marketers wince, but creative marketers can find a way to weave the notice into the ad without losing any impact.
- Identify your physical address. This one probably won’t be too big a pill to swallow for those of you with a brick-and-mortar establishment. But if you’re working from home, you may want to establish a private mailbox or P.O. Box. One way or another, though, you have to include a valid mailing address.
- Give recipients opt-out options. You have to provide a clear set of instructions on how to opt-out of future emails. This can be a link to a page that automatically opts the user out, or instructions on whom to email with the opt-out request. It just has to be clear and easy to follow. Make sure if you’re using email, your spam filter isn’t keeping the opt-out requests from getting to you.
- Honor the opt-out requests. You have ten business days to get that last message in because after ten days, you’re in violation of the Act. And opting out must be free, cannot ask for any personal identifying information beyond an email address, or require any steps beyond a reply email or a visit to a single page on a website. Nor can you sell or transfer the recipient’s email when they opt-out (unless sharing the email is with a company hired to help you manage the opt-out requests).
- Keep tabs on others working for you. It is no excuse for a violation of the ACT to blame a company you’ve hired to manage your email marketing. If there is a violation, you and the company you’ve hired are both legally responsible.
Violations of the CAN-SPAM act are steep. It’s $16,000 per violation—that is, $16,000 per email sent that violates the act. You do the math. Unless you’re Apple or Wal-Mart, chances are you can’t afford even one violation. And the same email may be a violation of other state and federal laws as well, particularly if it is misleading or deceptive.
Are you familiar with the CAN-SPAM act? Are you making sure your email newsletter is in compliance?