What is CAN-SPAM and how does it impact the way your business uses email marketing? In this guide, we’re going to explain the CAN-SPAM Act of 2003, the penalty for violating its rules and regulations, and how a business can remain CAN-SPAM compliant.
Important note: This article is intended for general informational purposes and does not represent legal advice as to any particular set of facts. Please consult the appropriate professional advisor as necessary.
What is CAN-SPAM?
The Controlling the Assault of Non-Solicited Pornography and Marketing Act, or more commonly referred to as CAN-SPAM, was established in 2003, introducing new rules and requirements for sending commercial emails.
The intent of the CAN-SPAM act was to protect consumers by, in part, prohibiting the use of deceptive, misleading, or nefarious information in email marketing materials.
CAN-SPAM applies to commercial emails only. Commercial emails are those intended to market a commercial product or service. There are other categories of emails to which CAN-SPAM does not apply, such as transactional or relationship emails which typically pertain to an existing relationship–such as billing receipts or to provide customer service. Depending on the nature of the email, other regulations or laws may apply; it is also important to note that countries outside of the U.S. may have their own “CAN-SPAN” regulations and if your emails are targeting customers in those geographies, you may be subject to those rules.
What’s The Penalty For Violating CAN-SPAM?
The Federal Trade Commission (“FTC”) enforces CAN-SPAM and can assess penalties of up to $43,792 per email in violation.
How To Remain CAN-SPAM Compliant
CAN-SPAM specifically requires that commercial senders:
- Do not use false or misleading header information – Sender information should be accurate and identify the person or business who sent the email.
Example: If your business’s name is “Ace Automotive” your marketing emails should not appear to come from “Suzy’s Flower Shop.”
- Do not use deceptive or misleading subject lines – Subject lines should not make any statements that are deceptive or misleading; they should accurately reflect the content of the email.
Example: If the purpose of your marketing email is to promote a new car accessory you are selling, your email’s subject line should not read “We’ve Discovered a New Cure for Diabetes.”
- Disclose that the email is an ad – It must be clear to the recipient that the email they received is an advertisement.
While CAN-SPAM is flexible on how this can be achieved, any commercial email must clearly identify that it is an advertisement or affiliate promotion.
- Disclose your location – Emails should include the valid postal address of the sender.
At the bottom of your marketing emails, you could include a standard footer which lists your business address.
- Provide opt-in instructions – Emails must include clear instructions for how to opt out of marketing emails.
Many businesses include a hyperlink at the bottom of their emails that says “click here to unsubscribe from future emails.”
- Honor opt-out requests – The mechanism provided to recipients for opting out of marketing emails must be valid for thirty days following the email. All opt-out requests must be done free of charge and within ten business days of receipt of the request.
To avoid the risk of not providing a valid opt-out mechanism, businesses should use a universal opt-out link in each marketing email.