Email Marketing Legal Compliance and The CAN SPAM ACT

When used lawfully, email is a highly valuable marketing technique -- it’s cost effective and action-oriented, and you can speak directly to your target audience.  But, no matter how many emails you send and how convincing your message may be, there’s no benefit to sending emails that get caught in your recipients' spam filters, or worse, irritate your customers and get you in trouble with the law.  If that’s not enough reason to make sure you’re in compliance, the threat of a (very) steep penalty certainly is.   Your company could face a fine of up to $16,000 for each email that violates the law -- which could put many small companies out of business altogether.

Although the legal risks associated with sending emails are intimidating, you can reduce or practically eliminate this risk with a little careful planning.  Your email marketing service provider should help you stay compliant as well, since they also may be held liable for any emails they send on your behalf that violate the spam laws, so it’s in their best interest to help you get it right.  Regardless, every first time email marketer should start by learning about the CAN-SPAM Act (aka Controlling the Assault of Non-Solicited Pornography and Marketing Act).  This set of federal regulations was enacted in 2003 to protect consumers’ rights regarding how companies communicate to them via email.

Note that it’s also important to check with your local government to find out if there are state spam laws that apply to you as well. In addition, if you’re sending emails to countries other than the U.S., you should comply with those other countries’ laws too.

Below is an overview of how to stay compliant with the CAN-SPAM act.  

1.  Don’t use deceptive tricks to entice people into reading your emails. 

Although it may seem like common sense to most people, it’s worth reiterating because so many spammers have violated this rule.  Here are some examples of what you need to be truthful about.

• Use the correct “From,” “To,” “Reply To,” and routing information.  In other words, don’t send an email under a false identity.
• Use relevant subject lines that relate to the actual content of the email.  For example, avoid using a subject line that says, “You Won a Free Car!” just to get the recipient to open the email.  
• Include your postal address in the email to show that you’re legitimate.  Many companies simply include their address in the footer of every email they send.
• Let the recipient know your email is an advertisement.  Unless your recipient has “opted in” by communicating to you that they want to receive your emails, you need to signify to the recipient that the message is an advertisement.  Although the law doesn’t outline exactly how you should accomplish this, one common technique is to include the phrase, “This email is an advertisement” somewhere in the email itself.

2.  Tell recipients how to stop receiving emails from you, and honor requests promptly. 

To be compliant, you must follow specific procedures that allow people to unsubscribe or ‘opt out.’

• Communicate how to opt out.  The message must be clear and conspicuous in the email itself.
• Provide an easy procedure to opt out.  Most senders provide a link in the email footer that allows the recipient to opt out using an online form.  Another option is to provide a return email address that recipients can use to communicate their preferences. Whatever your process is, it needs to be easy and obvious.
• Act on opt out requests quickly.  After you receive an opt-out request, you have 10 business days to stop sending additional emails to the recipient.  You also can’t sell their email address, even as part of a mailing list.  You may only transfer the email address to a company who you have contracted to help you comply with the CAN-SPAM act.

3. Monitor and take responsibility. 

Even if another company handles your email program, you still have an equal share of the legal liability.  Both your company and the company that sends emails on your behalf could be found liable for infractions, so make sure you know what that company is doing on your behalf to avoid any costly surprises.

Email marketing compliance is just one example of how legal issues can impact your day-to-day business operations.  To get the legal resources your company needs, sign up for a free trial of Rocket Lawyer's Easy Legal Plans.   For more information on email compliance, visit the Federal Trade Commision website.

Laws on this topic may vary from state to state. This content is not meant to provide you with complete information and it is not intended to be legal or tax advice. It is recommended that you consult with your own attorney, accountant or other advisor regarding your specific situation.