A federal law known as the “CAN-SPAM Act” applies to all commercial email messages, meaning those that promote your business or its services or products. Basically, the law permits businesses to market to a prospect or lead, via a validly-obtained email address, until that recipient asks you to stop, in which case you must do so right away. All commercial email must comply with the law, whether your prospects or customers are individual consumers or other companies - there are no exceptions for business-to-business email. Some of the main requirements to follow in email marketing campaigns include:
- Don’t use false or misleading header information. The “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify you or your company as the person or business who initiated the message.
- Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message. For example, a subject line of “An important email about your life insurance policy” should not have content that says “…because you will “die” once you find out about these deals on bespoke suits.”
- Identify the message as an ad. The law provides a lot of leeway on how to do this, but you must disclose clearly and conspicuously that the message is an advertisement or a commercial email.
- Tell recipients where you’re located. The message must include your company’s valid physical postal address. This can be a current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
- Have a process by which recipients can unsubscribe from receiving future email from you, and tell recipients how to unsubscribe. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Give a return email address or another easy Internet-based way to allow people to communicate their choice. Make sure the method is easily accessible and does not require multiple clicks to accomplish the task of unsubscribing. Make sure your spam filter doesn’t block these opt-out requests from your own email inbox.
- Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message and you must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
- Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.
This “Best Practices” content is provided for convenience and information only and is not intended as legal advice. We do not claim that this information represents an accurate summary of the laws in this area or that it will be updated for any changes. Please consult an attorney for questions about your compliance with applicable laws.