Candid answers to CAN-SPAM questions

The classic 40s movie An Email to Three Wives, the R&B hit Take an Email, Maria, and C.S. Lewis’ The Screwtape Emails. The titles would have been different if they had been written recently. Email is an essential part of most companies’ marketing strategy. If you send commercial email – or have others send it for you – are you complying with the CAN-SPAM Act and the FTC's CAN-SPAM Rule? FTC attorney Christopher Brown answers some of the CAN-SPAM questions businesses are asking.

I’ve heard that the CAN-SPAM Act requires senders to identify each commercial email message as an advertisement. Do I have to use specific wording? Do I have to include it in the subject line?

CHRISTOPHER:  The CAN-SPAM Act doesn’t require senders to identify the message as an advertisement in the subject line. Initiators of commercial email only have to identify the message as an ad in a way that is “clear and conspicuous.” The law gives you flexibility in how to do that effectively, but remember that deceptive subject lines are illegal. Before the federal CAN-SPAM Act was passed in 2003, some states required unsolicited commercial email to include a label like “ADV” in the subject line. But Congress pre-empted those laws with CAN-SPAM. Here's another important point about subject lines. In the case of commercial email that contains sexually oriented material, the CAN-SPAM Act’s Adult Labeling Rule requires the phrase “SEXUALLY-EXPLICIT:” to appear in all caps as the first 19 characters in the subject line.

I plan to send commercial email to a list of people who have given prior affirmative consent to get messages from my company.  So I don’t have to worry about complying with the CAN-SPAM Act’s commercial email requirements, right?

CHRISTOPHER: Wrong. If recipients have given their prior affirmative consent to get messages from you, you’re exempt from the requirement of identifying the message as an ad or solicitation – but that’s it. All other CAN-SPAM requirements still apply. Therefore, email to those people still has to include accurate header information and subject lines and a valid physical address. And you still must include information on how to opt out of receiving future email and honor opt-out requests promptly.

I bought a list of email addresses for people likely to be interested in my niche product. If I comply with the commercial email requirements of CAN-SPAM, do I have anything to worry about?

CHRISTOPHER:  The CAN-SPAM Act doesn’t require initiators of commercial email to get recipients’ consent before sending them commercial email. In other words, there is no opt-in requirement. So in general, as long as you follow the “initiator” requirements of the Act, you can send email until the recipient asks to opt out. But buying lists like that can be risky. There is the possibility that addresses on the list belong to people who have already opted out of receiving email from your company. And there’s a risk that the list was put together using illegal means like address harvesting or dictionary attacks. Therefore, some companies choose to send marketing email only to people who have affirmatively asked to receive them or with whom the company already has a business relationship.

Instead of regular email, I’d like to market my product through social media platforms like Facebook, LinkedIn, etc.  Are there concerns I need to be aware of about messages transmitted through those forms of email?

CHRISTOPHER:  Although the FTC is the primary law enforcer of the CAN-SPAM Act, the law also authorizes certain private entities – for example, providers of internet access service – to bring lawsuits alleging violations of the Act. In those cases, some federal courts have ruled that CAN-SPAM’s definition of “electronic mail message” includes commercial messages transmitted to a social network user’s inbox, news feed, wall, etc. So if you’re thinking of marketing on social media, keep that in mind. Furthermore, have you checked the terms and conditions of social media platforms? Many have limits on how marketers can use them.

Does cell phone spam violate the CAN-SPAM Act?

CHRISTOPHER: Yes and no. Although the CAN-SPAM Act is primarily designed to curb email spam sent to computers, it still applies to some spam transmitted to wireless devices like cell phones. In 2005, the FCC adopted rules that prohibit sending unwanted commercial messages to addresses referencing an internet domain name assigned by wireless carriers for delivery to a subscriber’s wireless device. For example, FCC rules prohibit sending an unwanted text message to a cell phone using Internet-to-phone short message service (SMS) technology. But what about phone-to-phone SMS texts, the more common way of texting where messages are routed directly to the wireless carrier over a private network? In that situation, CAN-SPAM doesn’t apply, but marketers need to pay careful attention not to violate Section 5 of the FTC Act or the FCC’s rules concerning messages sent to wireless telephones under the Telephone Consumer Protection Act (TCPA).

Does the CAN-SPAM Act apply to email sent to members of online groups?

CHRISTOPHER:  As a general rule, online groups – mailing lists, listservs, and the like – are covered by CAN-SPAM. Of course, in many cases, the primary purpose of email sent by and to those groups isn’t commercial, and thus the Act wouldn’t apply. But when the primary purpose of the email is commercial, both initiators and senders of messages to group members are responsible for complying with the applicable provisions of CAN-SPAM. Listserv moderators should be especially careful to the extent that they manually forward email to the group on behalf of group members. If it’s a commercial email, that would meet the definition of “initiate” under the law and could result in CAN-SPAM liability.

My obligations as a marketer aside, I have a question as a consumer. Campaign season is upon us and I’ve been getting a lot of email urging me to support or donate to various political candidates. I’ve asked to be removed from their lists, but the email keeps on coming. Is this okay under the FTC’s rules?

CHRISTOPHER:  The CAN-SPAM Act applies only to commercial email, whether sent individually or in bulk. It doesn’t apply to non-commercial bulk email. Furthermore, political messages are protected under the First Amendment. Of course, many groups not covered under the law have chosen voluntarily to honor UNSUBCRIBE requests. But if you’re getting unwanted email from entities not subject to CAN-SPAM that don't offer an UNSUBSCRIBE feature, another option is to contact them directly to express your preference not to receive more messages. (Don’t just respond to the email, which may not be read.) If any group is trying to win you over – whether it's an advertiser, an advocacy group, a candidate, etc. – it could be persuasive to let them know how you feel.

Looking for more tips? Read The CAN-SPAM Act: A Compliance Guide for Business.