The CAN-SPAM (Controlling the Assault of Non-Solicited Pornography and Marketing) Act of 2003 is a federal law that sets the rules for commercial e-mail messages in the United States. The Act was signed into law on December 16, 2003, and has since been amended to include additional provisions. The law applies to all commercial emails, including those sent by businesses, non-profit organizations, and individuals.
The purpose of the CAN-SPAM Act is to provide consumers with greater control over the types of commercial messages they receive, as well as to reduce the amount of spam emails that are sent. In this article, we will discuss the requirements of the CAN-SPAM Act, the penalties for non-compliance, and best practices for businesses to ensure compliance.
1. Opt-Out Mechanism
One of the main requirements of the CAN-SPAM Act is that every commercial email must provide email recipients with a clear and conspicuous mechanism to opt-out of receiving future emails from the sender. This mechanism should be easy to use and must be valid for at least 30 days after the email is sent. Senders must honor any opt-out request within 10 business days.
The opt-out can be an unsubscribe link or an email address, but it must be easy to find and use. Additionally, you must process opt-out requests without requiring the recipient to provide any additional information beyond their email address.
2. Accurate Header Information
The header information of commercial messages, including the “From,” “To,” and “Reply-To” fields, must be accurate and not misleading header information. The sender must use their actual originating domain name and provide a valid physical postal address in the email.
This requirement helps ensure that recipients can identify the sender of the email and respond to the sender if necessary. The physical postal address can be the sender’s current street address, a post office box, or a private mailbox, but it must be a valid address where the sender can receive mail.
3. Subject Line
The subject line of any commercial email must accurately reflect the content of the email and should not be misleading or deceptive. This requirement helps ensure that recipients can quickly and easily identify the purpose of the email and determine if they want to read it.
The subject line should not be deceptive or misleading in any way, and should not contain false or irrelevant information. Additionally, the subject line should not be designed to trick recipients into opening the email.
4. Identifying Email Messages as an Advertisement/Sexually Oriented Material
Commercial email messages must be identified as such and include the sender’s physical postal address. The identification should be clear and conspicuous, and the email should not contain false or misleading information.
The identification can be a statement such as “This is an advertisement” or “This is a promotional email,” and it should be placed in a prominent location in the email. The physical postal address should be included in the identification or in the footer of the email., whether it be your current street address, a P.O box you’ve registered under U.S. Postal Service regulations, or a private mailbox you’ve registered with a commercial mail receiving agency established under postal service regulations.
In addition, messages with sexually explicit material must be identified as such, using the statement “SEXUALLY-EXPLICIT”. If non-solicited pornography was sent, the marketing act requires a “brown paper wrapper” on the mail messages, ensuring the recipients cannot view sexually oriented material without an action on their part (e.g. scrolling down or clicking a link).
5. Sending Behavior
The CAN-SPAM Act prohibits senders from using deceptive subject lines, headers, or email addresses, and also requires that the email be sent from a valid email address. Additionally, the law mandates that commercial email contains a valid physical address of the sender.
The sending behavior requirement helps ensure that recipients can trust the sender of the email and reduces the risk of deceptive or fraudulent emails. The sender must use a valid email address that is not misleading or fraudulent, and the email must be sent from a legitimate source.
6. Third-Party Email Marketing
If a business hires a third-party to send commercial emails on its behalf, it is still responsible for ensuring compliance with the CAN-SPAM Act. The business must monitor the third-party’s email practices to ensure compliance with the law.
This requirement helps ensure that businesses do not use third-party email marketers who send spam or other illegal activities.
Penalties for Non-Compliance:
The penalties for non-compliance with the CAN-SPAM Act can be severe. The Federal Trade Commission (FTC) can impose civil penalties of up to $50,120 per violation, and can also seek injunctions and other relief to stop illegal email practices. In addition, state attorneys general can also bring lawsuits against violators of the law.
These fines are given for each separate email, and more than only one person can be held responsible for violations.
Businesses that violate the CAN-SPAM Act can face reputational damage, as well as the loss of customer trust and loyalty; this can affect both the company and the people who send the emails, even with multiple e-mail accounts. Customers who receive unwanted emails may report the business to the Federal Trade Commission, which can result in an investigation and penalties for non-compliance.
In short, CAN-SPAM compliance is incredibly important for businesses to follow. If you are sending transactional or relationship messages, following CAN-SPAM compliance can save you and your business a large amount of money and your reputation.
Best Practices for Compliance:
To ensure compliance with the CAN-SPAM Act, businesses should follow these best practices:
1. Obtain Consent
Businesses should obtain consent from recipients before sending commercial emails. This can be done through opt-in forms on the business’s internet website, or by obtaining consent at the point of sale. Consent should be clear and affirmative, and should include a description of the types of emails that will be sent.
2. Honor Opt-Out Requests
Businesses should honor opt-out preferences promptly and without requiring additional information from the recipient. The opt-out mechanism/unsubscribe link should be easy to find and use in all commercial e-mail, and should be valid for at least 30 days after the email is sent. Processing such a request quickly and efficiently should keep you safe.
3. Use Accurate Header Information
Businesses should use accurate header information in commercial emails, including the “From,” “To,” and “Reply-To” fields. The sender’s email address should be accurate and not misleading, and a valid physical postal address should be provided.
4. Use a Clear and Accurate Subject Line
Businesses should use clear and accurate subject lines in commercial emails, and should avoid using deceptive or misleading language. The subject line should accurately reflect the content of the email, and should not be designed to trick recipients into opening the email.
5. Identify the Message as Advertisement
Businesses should clearly identify commercial emails as advertisements and should include the sender’s physical postal address in the email. The identification should be clear and conspicuous, and the email should not contain false or misleading information.
6. Monitor Third-Party Email Marketing
Businesses that hire third-party email marketing services should monitor their practices to ensure compliance with the CAN-SPAM Act. This can include reviewing the marketer’s email practices and ensuring that they are following best practices for compliance.
The CAN-SPAM Act of 2003 provides rules and guidelines for commercial emails in the United States. The law helps ensure that recipients have greater control over the types of emails they receive, and reduces the amount of spam emails that are sent. Businesses that fail to comply with the law can face severe penalties, including fines and reputational damage.
To ensure compliance with the CAN-SPAM Act, businesses should follow best practices, including obtaining consent from recipients, honoring any unsubscribe requests, using accurate header information and subject lines, identifying the message as an advertisement, and monitoring third-party email marketers. By following these guidelines, businesses can maintain customer trust and avoid penalties for non-compliance.
It is important for businesses to understand the requirements of the CAN-SPAM Act, and to implement policies and procedures to ensure compliance. This can include training employees on the requirements of the law, and implementing internal controls to monitor compliance.
In addition, businesses should regularly review and update their email marketing practices to ensure compliance with the law. This can include reviewing and updating email lists, monitoring email content and subject lines, and ensuring that opt-outs are processed promptly.
While compliance with the CAN-SPAM Act may seem daunting, it is an important step in building customer trust and maintaining a positive reputation. By following best practices and implementing compliance procedures, businesses can avoid penalties and maintain a positive relationship with their customers.