Yeah, what is CAN-SPAM? Sounds like a meat product stored for decades at room temperature. Fortunately, it is not that. The CAN-SPAM Act is the United States’ Federal laws regarding emailing unsolicited emails. Altogether, it is a pretty weak law, but it has a few bright line rules.
We’re going to take you through some of the most common elements of CAN-SPAM. Note that this is not all of them.
CAN-SPAM only applies to commercial messages that are promotional in nature. Therefore, it does not apply to important messages from a company to its customers. Once you include promotional material in an otherwise non-promotional email, you run the risk of crossing the line into CAN-SPAM rules.
The header information is the “to:”, “from:”, “reply-to:”, and other name and routing information. You cannot legally set any of these to a false or misleading value. For example, you cannot make it appear as though a government agency or internal department has sent the email.
Deceptive Subject Lines
It’s marketing, so the definition of “deceptive” is a bit loose. However, there are some examples that fit clearly into the definition. For example, if your subject line makes it appear as though your email is from the government, you’re in violation. If you avoid trying to trick people into opening your email, you’ll likely be fine.
Identify as an Advertisement
The act requires that you “clearly and conspicuously” notify the recipients that your email is an advertisement. What does this mean? No one knows for certain. We recommend having the actual word “advertisement” somewhere towards the top of the email.
The most violated portion of CAN-SPAM is the address requirement. You must list a physical address or PO Box in your email.
The unsubscribe button is my favorite. Additionally, it is the law. Even if your email isn’t sent out through a mass program like MailChimp, you’re still required to have an easy way to unsubscribe.
On top of making it easy to find, the unsubscribe process may not require any additional information beyond the recipient’s email address. They also can’t be required to go through multiple steps to make this happen.
Honor Opt-Out Promptly
How many times have you unsubscribed and received a notice that your preference will be updated within 21 days? As it turns out, that’s illegal. Promotional mailers must remove your email address from their list (and also make sure they don’t email you again) within 10 days. Why 10 days? Probably because Congress doesn’t understand that request can be processed in 10 seconds.
Liable for Others
Even if you hire an outside firm to do your emailing, you’re still liable for any violations they commit.
There are many states that have stricter laws than this. Unfortunately for you, wherever the recipient is located is the law that applies. Many European countries also have stricter laws, so keep that in mind if you have Europeans on your email list.
Fines for Violating CAN-SPAM
Fortunately for people who hate spam, violations of CAN-SPAM can come with some very hefty fines. The fines can reach into the millions because they’re on a per-recipient basis.
The CAN-SPAM Act is one of those areas where the legal limit is not good practice. If you strictly comply with the law, your emails will likely get reported as spam to the email providers. Thus, your emails will stop reaching your customers altogether.
Richard is the managing attorney for Law Plus Plus, a local small business law firm. As managing attorney, he helps small businesses and nonprofits startup, creating the contracts, and navigate the legal needs of businesses. Some of his practice areas include: corporate, contract, mergers & acquisitions, corporate litigation, and estate planning.