The Law & Email Marketing Compliance

Email marketing is nothing new. Services like MailChimp and Emma have been around since the early 2000s. What else came to us in the early 2000s? The CAN-SPAM Act, which lays out some important do’s and don’ts when it comes to email marketing compliance.

The Law: CAN-SPAM

The CAN-SPAM Act isn’t just a fun-with-acronyms play on “canning” spam. The Act (otherwise known as the “Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003”) is a federal law that governs email marketing compliance. It covers “commercial electronic mail” messages. The Act defines a “commercial electronic mail message” 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).

In other words, if the primary purpose of the email is to promote a commercial product or service, it’s a “commercial electronic mail message.” Thus, the message falls under CAN-SPAM territory. Non-compliance could mean a visit from the FTC. And, each separate email that violates the Act is subject to penalties of up to $16,000. Ouch.

Email Marketing Compliance: The Big Three

The FTC has published a full CAN-SPAM Act Compliance Guide for Business, but below is a summary of the three main areas of compliance to keep in mind: sending, content, and unsubscribing.

One: Sending

Your mailing list should include people that have affirmatively “opted-in” to receiving commercial emails. This isn’t technically a requirement under CAN-SPAM. The Act doesn’t require you to get permission before sending marketing messages — but it is a good practice. Services like MailChimp require it. Why? People who don’t “opt-in” are more likely to mark your message as spam, thus harming MailChimp’s reputation and affecting the company’s ability to deliver. MailChimp aside, do you want your message in front of people that want to hear from you? Or, do you want your brand to be associated with unsolicited spam in the mind of a consumers? Also, know that a message cannot be sent to a harvested email address, through an open relay, or without an unsubscribe option.

Two: Content

The content of your message cannot be misleading. It must be accurate. This means having an accurate “from” designation. Providing the recipient with enough information so that she understands who is sending the message is key. Beyond the “from” designation, the subject line and the content in the body of the message must be accurate and cannot be misleading. The message must also contain the business’s valid, current postal address. (P.O. boxes are fine.) It must also disclose that it’s an advertisement or solicitation.

Three: Unsubscribe

Every marketing email should have a visible and operable unsubscribe mechanism. Under the law, you must honor opt-out requests within ten business days. The recipient can’t be required to pay a fee, provide information beyond his or her email address and email preferences, or take any additional steps other than sending a reply email or visiting a single page on a website.

Keep in mind that, depending on the industry, other rules might apply (particularly for messages that are sexually explicit in nature).

The Point: Email marketing compliance is not to be taken lightly. If you are using email as a means to promote your product or services, be sure to educate yourself.

What’s next? Click here to download your [free] Essential Legal Checklist from Spear IP.

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