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Question: What is CAN-SPAM and how does it apply to email marketers?
Answer: The CAN-SPAM Act of 2003 is the federal law governed by the Federal Trade Commission (FTC) that “establishes requirements for those who send commercial email, spells out penalties for spammers and companies whose products are advertised in spam if they violate the law, and gives consumers the right to ask emailers to stop spamming them.”
The law became effective on January 1st 2004 and was revised in 2008 to address additional provisions that were not complete in its original form.
Who does the law apply to?
CAN-SPAM applies to any organization or entity that sends commercial based email marketing communications. A commercial email is defined as any email sent for commercial purposes, such as an advertisement of product or service, or a periodical subscription.
Who is exempt from CAN-SPAM?
The following entities are exempt under CAN- SPAM: 100% transactional messaging, religious messaging, political messaging and National security messages.
What about non-profit?
Non-profit email marketing is not exempt and needs to comply with all provisions.
What about email messages that contain transactional data and commercial offerings?
In these cases the FTC has left the decision up to the recipient as to the “Primary Purpose” of the email message. If the recipient deems the email message to be commercial in nature then the message must be compliant with the provisions of CAN-SPAM.
Does this mean I cannot send offers in transactional email?
No, however the offer should not dominate the purpose of the email message. As a best practice you should send commercial email marketing separate from transactional email messages. This will build your sending reputation on both mail streams, and should you encounter an issue, one mail stream won’t affect the other's reputation.
How else do I comply?
There are three main areas of compliance under CAN-SPAM and they fall into the following categories:
Sending Behavior:
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Email marketing messages cannot be sent through an open relay
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Email marketing messages cannot be sent to a harvested email address (i.e. addresses that are obtained illiegally)
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Email marketing messages cannot contain a false header
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Email Marketing Content Compliance:
Unsubscribe Compliance:
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A visible and operable unsubscribe mechanism is present in all email messages
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The unsubscribe mechanism must be active for 30 days
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Consumer opt-out requests are honored within 10 business days
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Opt-out lists also known as suppression lists are only used for compliance purposes.
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The opt-out cannot be complicated and only the email address is required to complete the request
What about email messages that have multiple advertisers?
The FTC revised CAN-SPAM to include the Designated Sender Option. In this case the sole sender in the email From line becomes the sender of record and responsible for all advertisers for compliance under CAN-SPAM.
What about "forward to a friend" email messages?
Under the act if you incent or offer something of value to an individual in exchange for forwarding a commercial email marketing message then you must comply with the CAN-SPAM regulations.
What are the ramifications on non compliance?
There are several issues to consider for non compliance:
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You can be sued by federal agencies, states and ISPs
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Individuals cannot bring a lawsuit under the law
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Large monetary damages are possible
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Jail time possible in some cases
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Negative brand management for your organization
Summary:
A complete description of the CAN-SPAM Act can be found here: http://www.spamlaws.com/federal/108s877.shtml
Remember, all senders of commercial email marketing must adhere to the CAN-SPAM regulations. As we cannot provide legal consultation to your organization, if you need additional information about your legal obligations we recommend that you consult with your respective legal teams for compliance requirements.
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About the Author
David Fowler is the director of email strategy, deliverability and privacy compliance for Lyris. He consults with email marketers to help them get better results from their email programs.
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