Spam: What You Need to Know About Email and the CAN-Spam Act

SPAM-and-the-CAN-Spam-actEmail communication has become the lifeblood for businesses to conduct customer service, marketing, and sales solicitation.  With that, businesses are being heavily scrutinized for email practices that are deemed deceptive, fraudulent or spam.  Spamming, which is the mass sending of unsolicited email, has especially drawn the ire of consumers to the extent that Congress was compelled to pass the CAN-SPAM Act which establishes guidelines and requirements for all email of a commercial nature.  It also levies steep fines in cases where businesses are found guilty of violating the Act.  As a business owner, you need to use email appropriately and be aware of FTC regulations and the CAN-SPAM Act.

Does CAN-SPAM Apply to All Email? 

The Act covers all email that falls within its definition of commercial messaging regardless of the recipient, and it applies to single emails as well as bulk transmissions.  A commercial message is one where in its primary purpose is to promote or advertise a product, or service, or the business itself.  

Messages that are primarily customer service oriented where a specific transaction or customer’s account information is discussed are generally not considered to be commercial messages.  Should a message include both customer service information and a product promotion, it may be considered commercial if it is determined that the primary purpose was to promote. 

How is CAN-SPAM Enforced? 

The Federal Trade Commission (FTC) is the regulatory authority that enforces the CAN-Spam Act’s provisions. The FTC was created to protect consumers against deceptive and unfair business practices and provide remedies that include prosecution and fines. 

Spam recipients are encouraged to forward suspect emails to the FTC which can then track the email back to the sender.  Since the enactment of CAN-SPAM, the FTC has hired over 1,500 agents dedicated to its enforcement.  In recent years, the numbers of prosecutions has increased markedly and have led to assessments of penalties up to $3 million and incarceration up to 5 years.  In some cases, agents have impounded property that produced the emails or was acquired through criminal activity.

How to Keep Your Email Messaging in Compliance  

Avoid Deception:  Make sure that the email address information, including your sender address and domain address accurately identifies the business and that the subject line only refers to the actual content of the message.  

Call an ad and ad: As long as it is indicated clearly up front that the email is an advertisement, there is nothing that prevents the sending of commercial messages. 

Don’t be inconspicuous: All email messages need to include an actual physical address of the business location.  A post office box is acceptable as long as it is registered. 

Give recipients an opt-out: As part of CAN-SPAM, recipients must be given the opportunity to communicate back to the sender that they no longer wish to receive emails.  This must be clearly stated so that an individual doesn’t have to hunt around for an opt-out option.  All requests must be acted on within 10 business days and email addresses cannot be sold or forwarded to others.

Keep a reign on affiliates and selling partners:  If business #1 allows business #2, to include one of its product promotions in an email, both businesses can be held responsible for any violations of CAN-SPAM. 

Be vigilant: Make sure your employees know the rules and monitor that they are following them. Use a reputable third-party email vendor like AWeber or Constant Contact to stay within the law.

And get our AskConny Email Marketing Checklist to make it very easy for you to comply.

Email messaging can be a very effective and efficient way for businesses to market, sell and provide customer service. With all of the attention being given to email abuses by the FTC, businesses should apply the most prudent measures when developing their email communications strategy.  Review the CAN-SPAM Act thoroughly before implementing any email sales or service strategy.

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