The CAN-SPAM Act of 2003: Basics Every Business Needs to Know

Attorney, The Creekmore Law Firm PC


LawOffice-69Ecan-spam imagemail marketing is one of the most widely utilized forms of customer engagement.  Its low-cost coupled with high-reach makes email blasts an attractive option for business both small and large.  However, many businesses and marketers are unaware of the regulations surrounding commercial electronic mail, or the up to $1600 per violation that comes from disregarding rules.

During the internet’s early years, consumers found themselves pelted with hundreds, if not thousands, of unsolicited emails. Some of these emails were innocuous promotional messages, but many contained misleading information or pornographic materials.  As a response to these messages and as a way to protect internet users, the “Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003” was signed into law in December of 2003. The goal of the act was to limit the number of frivolous, dangerous, or inappropriate messages consumers received.

The CAN-SPAM Act only applies to commercial mail, which is construed broadly. The act defines 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).”  This includes everything from email blasts to coupons to promotional newsletters.  Less obvious forms of CAN-SPAM commercial mail include promotion codes coupled with the prompt to “forward” or “invite friends.”
To comply with CAN-SPAM, businesses should keep the following in mind:

  • A consumer must consent to opt IN to receiving any sort of recurring commercial communications—this can be by checkbox. This means companies can’t automatically add emails from everyone who interacts with their website (e.g. by purchasing a product). The box needs to be clearly labeled and a consumer must check the “opt-in” box themselves.
  • Companies must make sure there is a clear “opt out” option in every email blast sent—and make sure it works. Companies have about 30 business days to effectively remove someone opting out from their email lists before they are fined.
  • The sender of the email must be clearly identified. Origin and routing email addresses cannot be false or misleading.
  • Businesses must explicitly disclose that the message is advertising and for promotional use. There are many creative ways to do this, but the fact the email is an advertisement must be clearly and conspicuously stated.
  • Businesses must include a physical address in the email
  • Don’t misrepresent the actual content of the email. Marketers can write a kitschy tag line, but make sure it isn’t out of line with the email’s message

Violations can result in steep fines for any party involved.  Both the company whose product is promoted in the message AND the company that actually sends the message may be held legally responsible, meaning public relations and marketing companies must keep these rules in mind at all times.

For more information on how your business can comply, see the FTC’s CAN-SPAM Compliance Guide or contact one of our attorneys.

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