Keep Your Email Marketing Legal by Staying Compliant with CAN-SPAM Regulation: A Guide for Businesses 2023

In the digital age, email marketing plays a crucial role in the success of businesses. However, it is essential for businesses to adhere to the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, which regulates commercial messages sent via email. Non-compliance can result in hefty fines and penalties. This article aims to provide businesses with a comprehensive guide to staying compliant with CAN-SPAM regulations, using information from the Federal Trade Commission (FTC) website.

General Overview of the CAN-SPAM Act

The CAN-SPAM Act is a United States law that establishes the rules for commercial email, gives recipients the right to stop businesses from sending them emails, and lays out the penalties for non-compliance. The law covers all commercial messages, defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service”. This includes emails sent to promote website content, business-to-business emails, and emails sent to acquire or confirm valuable information.

Main Provisions of the CAN-SPAM Act

To stay compliant with the CAN-SPAM Act, businesses must follow these main provisions:

Don’t use false or misleading header information: The “From,” “To,” “Reply-To,” and routing information should accurately identify the sender, the origin, and the destination of the message.

Don’t use deceptive subject lines: The subject line should accurately reflect the content of the email.

Identify the message as an ad: The message must be clearly and conspicuously identified as an advertisement, though the law gives businesses leeway in determining how to accomplish this.

Tell recipients where you’re located: The email must include the sender’s valid physical postal address.

Tell recipients how to opt out of receiving future emails: The message must provide a clear and conspicuous explanation of how recipients can opt out of future emails from the sender.

Honor opt-out requests promptly: Any opt-out mechanism provided must be able to process requests for at least 30 days after the email is sent. Businesses must honor opt-out requests within ten business days.

Monitor what others are doing on your behalf: If a business hires another company to handle its email marketing, the business is still responsible for compliance with the law. Both the company sending the message and the company on whose behalf the message is sent can be held legally responsible.

Complying with CAN-SPAM Act Provisions in Detail

Don’t use false or misleading header information

The header information in an email must be accurate and not deceptive. This means that the “From” line should accurately identify the sender, and the “To” and “Reply-To” lines should show the correct email addresses. The domain name and email address should not be manipulated to disguise the sender’s identity.

Don’t use deceptive subject lines

The subject line of the email must accurately reflect the content of the message. It should not be misleading or create a false impression of the email’s content to entice recipients to open it. For example, if an email promotes a sale of a specific product, the subject line should not state that the recipient has won a prize.

Identify the message as an ad

The CAN-SPAM Act requires businesses to disclose that their email is an advertisement. However, the law provides flexibility in how this disclosure is made. For example, businesses can use phrases like “advertisement” or “sponsored message” in the email

body or subject line. Alternatively, businesses can include a more detailed explanation or use a specific design, style, or color to distinguish the advertisement from other content. The key is to ensure that the disclosure is clear and conspicuous to the recipient.

Tell recipients where you’re located

Every commercial email must include the sender’s valid physical postal address. This can be a street address, a post office box registered with the United States Postal Service, or a private mailbox registered with a commercial mail-receiving agency. Including the address helps recipients identify the sender and provides a way for them to contact the business if needed.

Tell recipients how to opt out of receiving future email

Businesses must provide a clear and conspicuous explanation in each email on how recipients can opt out of future emails. This can be achieved through various methods, such as providing a link to an opt-out page, an unsubscribe button, or an email address recipients can use to send an opt-out request. The opt-out mechanism should be easy to understand, easy to use, and free of charge.

Honor opt-out requests promptly

Businesses must process opt-out requests within ten business days. Once a recipient has opted out, it is unlawful to sell or transfer their email address, except to comply with the CAN-SPAM Act. The opt-out mechanism must be able to process requests for at least 30 days after the email is sent. It is essential to have a system in place to track and honor opt-out requests, ensuring that recipients are removed from the mailing list promptly.

Monitor what others are doing on your behalf (Internal & External)

If a business hires another company to handle its email marketing, it is still responsible for compliance with the CAN-SPAM Act. Both the company sending the message and the company on whose behalf the message is sent can be held legally responsible. Businesses should closely monitor the activities of third-party email marketing providers, establish clear guidelines for compliance, and implement processes to ensure adherence to the CAN-SPAM Act.

Penalties for Non-Compliance

Businesses that fail to comply with the CAN-SPAM Act can face severe penalties. Each separate email in violation of the law is subject to fines of up to $43,792. In addition to monetary penalties, the law allows for criminal penalties, including imprisonment, for certain aggravated violations. The FTC, state attorneys general, and other federal agencies can enforce the CAN-SPAM Act.

Compliance with the CAN-SPAM Act is essential for businesses using email marketing to promote their products or services. By adhering to the main provisions outlined above, businesses can avoid costly penalties and maintain a positive reputation with their customers. By being transparent, respecting recipients’ preferences, and closely monitoring email marketing activities, businesses can ensure a successful and compliant email marketing strategy.

I recommend reading further into the subject if you are a marketing manager or business owner. A great starting point that goes over much of what we discussed in this article at https://www.ftc.gov/business-guidance/resources/can-spam-act-compliance-guide-business