Michigan

The CAN-SPAM Act: Legal Requirements for Commercial Email Marketing

Savvy marketers know that direct mail can be one of the most effective forms of business advertising. In this digital age, email marketing can produce many of the same marketing benefits as traditional paper direct mail. However, there are legal requirements for commercial email marketing that must be strictly observed. The primary law in this area is the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act).

The CAN-SPAM Act imposes requirements on the activities of commercial emailers and provides certain penalties for spammers and businesses that advertise their products in spam emails if they violate the law. The Act also provides consumers with the legal right to ask commercial emailers to stop sending them spam email messages.

CAN-SPAM targets email messages that have the primary purpose of advertising or promoting a commercial product or service. This can include website content in addition to "traditional" products and services. CAN-SPAM has the specific following requirements for commercial email marketing messages:

1. Header information cannot be false or misleading.

2. The message cannot contain deceptive subject lines.

3. The email recipient must be given a option to opt out of receiving future messages.

4. The message must be identified as an advertisement and include a valid physical postal address for the sender.

It is important to remember that email recipients do not have to give their permission to be contacted by a commercial email (at least initially). As noted above, CAN-SPAM is an opt out statute, not an opt in statute. In addition, there are some exceptions in the CAN-SPAM act for "transactional or relationship" messages. These types of emails facilitate an agreed-upon transaction or update a customer in an existing business relationship. However, even these types of messages cannot contain false or misleading routing information.

The CAN-SPAM Act can be enforced by the Federal Trade Commission. CAN-SPAM also gives the Department of Justice authority to enforce criminal sanctions for violations of the statute. A number of other state and federal agencies can enforce the Act against organizations under their jurisdiction, and Internet access providers may also sue violators.

If you are considering adding email marketing to your business outreach activities, you should consult with a Michigan business attorney who has understanding and experience with these unique issues.

Full post as published by Michigan Business Lawyer Blog on July 30, 2008 (boomark / email).