The CAN-SPAM Act of 2003 didn’t mean the end of newsletter emails; legitimate, above-board companies should be relieved that this act removes underhanded, unwanted junk mail from their customers’ email boxes, so they can read company messages they opted in to receive. It doesn’t even regulate all business email. Commercial email that is regulated by the CAN-SPAM act is email sent for advertisements purposes, not email that:
- Confirms a transaction or a shipping update.
- Is an update or change to a customer’s account.
- Warranty information, recalls, or other notifications about products a customer has already purchased — but not follow-ups to buy more.
The basics of the CAN-SPAM Act are the basics of good email marketing:
- Customers must knowingly opt-in to your email list.
- Customers must be able to opt-out easily.
- Advertisement email must be in some way labeled as an ad, and the subject line can’t be deceptive.
- The origin of the email must be clear, including company name and a physical address. If you’re web-based, this can be a post office box or commercial mail receiving agency.
Common Questions about the CAN-SPAM Act
Q: The Act says you must communicate that your email is an ad, but I see a lot of emails don’t have “advertisement” across the top. How do I comply with this?”
A: The law only says that you must give “clear and conspicuous notice” that your email is an advertisement; it doesn’t give advice or limitations on how to design your email so that the criteria is met. You should have a clear and early disclaimer on every advertisement email you send.
The easiest, most concrete thing to do would be to put the word “advertisement” in small caps at the top of your email, above the link “Having trouble reading this email?” that leads to the web version of your email ad.
If you decide to be creative, the FTC will determine if your disclaimer was adequate by a number of criteria.
Q: Does this cut down on subject line creativity?
A: Only if your subject lines were attention-grabbers that had nothing to do with your content. You can’t send an email about a toy store sale and give it a subject header “[Customer Name], Read This and Save Your Child!” (Inside the email: 20% off on teddy bears.)
Further, the “From:” field must be from your company or from a person. Your subject line must relate to the content of the email and not trick or mislead the reader in order to get them to open it.
Q: Can you actually go to jail over email?
A: Technically, yes. In 2003, two men in Detroit were found violating the act when they sent millions of emails for bogus diet patches, earning $230,000 from the scam. They settled in court, paid their own court costs, were fined their total income from the scam, and were barred from doing email-related business again. They escaped jail time.
I’m not a lawyer, but my understanding is that the law allows for two tiers of SPAM-related crime. One type can get you fined for tens or millions of dollars, and the other is jail time. It depends on the type of offense, the intent, the number of people harmed, and if other crimes were committed such as fraud. You can read more on spamlaws.com.