Legal Marketing & PR

CAN-SPAM Update: Have You Complied With the New Rules Yet?

By Larry Bodine, Esq.

This post summarizes an excellent article on the Marketing Sherpa site: The Federal Trade Commission’s latest update on CAN-SPAM regulations take effect in less than two weeks. Is your email compliant? Not sure?

The Good News

• CAN-SPAM terminology is now better defined, giving marketers clearer standards – that’s a baby step in the right direction.
• We know exactly who a “sender” is now.
• The FTC kept the 10-day mandatory opt-out requirement in place after mulling cutting it to three days.
• Nothing in CAN-SPAM will get you in legal trouble if you are sending *permission-based* emails. (Note: We aren’t attorneys; please check with your own legal counsel.)
• The FTC will not designate additional “aggravated violations.” In other words, it won’t go out of its way to engage in witch hunts.
  

5 Key provisions

Provision #1. Unsubscribe requirements

You cannot require an email recipient to:

• Pay a fee
• Provide information other than their email address and opt-out preferences
• Take more than these opt-out steps:
  • Send a reply email message
  • Visit a single Web page

Provision #2. Definition of ‘sender’

A ‘sender’ is now defined as the entity whose goods, services, business, organization, etc., are advertised in a commercial email message. For the most part, the name in the ‘From’ line of an email becomes the designated sender.

Provision #3. P.O. Box address OK

A ‘sender’ can use an “accurately-registered” post office box or private mailbox. This will meet the rule that a commercial email present a “valid physical postal address.” Prior CAN-SPAM rules did not make that clear.

Provision #4. Definition of ‘person’

A ‘person’ now is not limited to a human being. An FTC ‘person’ includes groups, institutions, unincorporated associations, businesses of all sizes and nonprofits, as well as human beings. This definition leaves no doubt now that nonprofits must abide by CAN-SPAM.

Provision #5. Forward to a Friend

Brands doing ‘forward-to-a-friend’ viral emails – where participants are rewarded, incentivized or induced – must adhere to CAN-SPAM rules. They must honor opt-out requests and provide a physical address to people who receive the forwards.

The Bad News

The act says, “Recipients of commercial electronic mail have a right to decline to receive additional commercial electronic mail from the same source.” This seems easy – just allow for opt-outs. But it’s difficult for many organizations to implement do-not-email rules because the opt-out isn’t just for the particular list that sent the mail. The opt-out applies to any promotional email any list or staffer from your brand might send ever again.

Full post as published by Larry Bodine's LawMarketing Blog on June 25, 2008 (boomark / email).