CAN-SPAM Act and How It Effects Your Campaigns

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Keep your campaigns on the right side of the anti-spam law

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CAN-SPAM Act and How It Effects Your Campaigns

What is the CAN-SPAM Act?

The CAN-SPAM Act is the Controlling the Assault of Non-Solicited Pornography and Marketing Act. While this law will not stop spam, it does make most spam illegal and ultimately less attractive to spammers. The law is specific about requirements to send commercial email and empowers the federal government to enforce the law. The penalties can include a substantive fine and/or imprisonment for up to 5 years. The law also includes a private right of action clause for internet service providers (but not for individuals) to sue a sender regarding the receipt of prohibited messages.

The CAN-SPAM Act went into effect January 1, 2004 and preempts all state laws. In May 2008 the Federal Trade Commission (FTC) released it's Statement of Basis and Purpose and Final Discretionary Rule (Final Rule). This statement contains four new rules, and also contains some clarifications and guidance to the text of the original act. Read the FTC press release. The new rules went into effect on July 7th 2008.

Am I In Compliance?

Constant Contact's terms and conditions require that your list be permission-based, which means that you already comply with the unsolicited email requirements stated in the law. To ensure that your emails are compliant:

  • Make sure that your email campaign's "Subject" line is straightforward, not misleading. The days of using cute phrases or tricks to boost open rates are over. The Adteractive settlement reinforces the FTC's commitment to enforce this requirement.
  • If you aren't already doing so, any unsubscribe requests that come to you via a reply to your email must be honored within 10 business days of the request.
  • Unsubscribe requests never expire. You must honor all opt-out requests indefinitely, regardless of future mailing platforms, unless you receive a new explicit opt-in request for that address.
  • You need to include a physical address in your email campaigns. Constant Contact requires that you add a physical address before you can schedule a campaign: make sure that this address is a valid physical postal address or PO Box for your organization. This will be in the Footer Options block at the bottom of your email.

In addition, make sure that your emails follow these 2 additional rules:

  • The From: address and From: name should be clearly recognizable as belonging to your organization.
  • Make sure you are not procuring the "forwarding" of your campaigns by offering any kind of incentive (e.g. coupons, discounts, t-shirts, etc.) to your recipients. Forwarded messages that contain incentives to forward are non-compliant under CAN-SPAM because they are considered commercial messages and won't contain the required opt-out mechanism. See below for more details.

More Help with CAN-SPAM

The FTC has produced some materials to help businesses understand and comply with the CAN-SPAM Act. Check them out through the links below.
  • The FTC put out a video to help businesses comply with the CAN-SPAM Act.
  • They've also produced a brochure that you can use.

Four Important Rules

  • The From: address visible to your recipients should be clearly recognizable as being sent from you. In addition, if you work with affiliates or you have 3rd party advertisements in your email campaigns you should review the new rule provisions relating to the definition of sender as it relates to multi-sender emails.

  • The opt-out mechanism must not be complicated: "an e-mail recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page to opt out of receiving future e-mail from a sender". (The Constant Contact opt-out mechanism is compliant with the new guidelines.)

  • Commercial mailers may now use a valid P.O box as the required physical postal address in their messages, as long as it is valid and meets USPS registration guidelines.

  • The term "person" has been defined as "an individual, group, unincorporated association, limited or general partnership, corporation, or other business entity." This is intended to clarify that CAN-SPAM's obligations are not limited to natural persons.

If you are a single organization sending email on your own behalf and do not publish ads from third parties in your emails, then the new rules will likely have little impact on you unless your opt-outs do not comply with the new stricter opt-out guidelines. If you work with a third party (other than Constant Contact) that manages your opt-outs for you, you should consult with them to make sure that their mechanism will comply with the new rule provisions by the July 7th deadline.

Additional Final Rule Guidance

The Final Rule also provides some additional guidance, the Statement of Basis and Purpose, on aspects of the Act that it does not explicitly modify in the final rule. Although these items are not officially mandated, they give guidance on how the FTC is likely to interpret applicability and compliance, and in that context should be given careful consideration.

  • The FTC clarifies that forward-to-a-friend mechanisms, which have generally been treated as exempt from CAN-SPAM because they are 1-to-1 messages from the original recipient to their friend, may in fact be subject to CAN-SPAM if the originator of the message "procures" the forwarding or if the forwarded message is stored in any way by the forwarding system.

  • A message has been "procured" if "the seller offers money, coupons, discounts, awards, additional entries in a sweepstakes, or the like in exchange for forwarding a message".

  • Most forward-to-a-friend mechanisms are not set up to include opt-out links. If you ask someone to forward an email, and the recipient of the forwarded email cannot unsubscribe, the message is non-compliant with CAN-SPAM. The final recipient needs to be able to opt-out of future messages from the original sender.

  • To ensure you're not caught by this clarification, you should make sure that you're not offering any incentives in the content of your email campaigns that encourages your recipients to forward them. For example, "forward to 10 friends and get a 10% off coupon", or "get a free t-shirt" would likely classify your forwarded message as commercial and thus subject to CAN-SPAM.

  • There is fairly extensive guidance given on the definition of a "transactional or relationship message". The FTC decided not to exempt entire classes of messages from CAN-SPAM, but rather requires they be considered on "a case-by-case basis depending on the specific content and context of such messages". If all of your communications to your recipients are already CAN-SPAM compliant, you don't need to worry about these clarifications; if you do treat some of your communication as transactional you probably want to look at this section in more detail to ensure that you're not impacted by the clarifications.

The FTC has decided not to alter the time limit (10 business days) for honoring an opt-out request; in addition, it reaffirms that there is no time-out on an opt-out request, i.e. that it may only be over-ridden by a subsequent explicit opt-in request.


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