A Quick Refresher of CAN-SPAM Rules for Email Marketing and Newsletters

If you cast your mind back to 2003, possibly you’ll remember that one of the grand issues of the day was unsolicited commercial email, otherwise known as spam.

That was a long time ago, back when John McCain was still a maverick and nobody had ever heard of Sarah Palin or Barack Obama.

Back then, McCain chaired the Senate Commerce Committee and knew a few things about the Internet. He was one of its staunchest champions and the CAN-SPAM Act of 2003 was his baby.

Yes, that’s right. We have John McCain to thank for CAN-SPAM.

The bill was a peculiar piece of legislation. Originally, of course, the idea was to get rid of unsolicited commercial email. But the Direct Marketers Association —  composed of some pretty heavy-weight brands like Microsoft, Amazon.com and Wal-Mart — argued that they needed to be able to send spam, too.

They didn’t quite phrase it that way, of course.

So, in the end, Congressional attempts to ride herd on innapropriate ads was watered down to a regulatory regime in which the ability (some would say the “right”) of so- called “legitimate” marketers to send as much spam as they wanted, as long as they obeyed the rules.

By now, you may be wondering what any of this has to do with you. Well, here’s the thing: even if you are not a spammer, if you use email for marketing or if you publish a newsletter that is delivered by email, then you still need to make sure that you are CAN-SPAM compliant.

Each individual violation of CAN-SPAM regulations is subject to fines of $16,000, which (a) is a lot of money that (b) adds up fast. There are additional penalties, including possible criminal charges, for the truly slimy  stuff like email harvesting, using malware to send by open proxy (or otherwise controlling people’s machines to send spam without their permission).

Fortunately, CAN-SPAM compliance is fairly easy to come by. In fact, you are probably doing quite a lot of this stuff already and what you are not doing can be easily implemented.

Your mailings are CAN-SPAM compliant if:

1. the subject line is not misleading and advertisements are clearly labeled as such;
2. the email headers, sending email address and other identifiers in
   the headers have not been tampered with in order to conceal your
   identity;
3. the body of the email contains a valid physical address for
   the sender; and
4. the email contains a functioning opt-out mechanism, and opt out
   requests are honored within 10 business days of receipt of that
   request.

The point of the rules is to keep us from misleading people, to ensure that we are easy to find if someone has a problem or just needs to find us, and to make it easy for people to escape from our clutches whenever
they want to.

One of the aspects of the rule-making process with respect to this legislation was watching the Federal Trade Commission (FTC) realize that there were more types and uses for email than simply commercial and
non-commercial messages.

Of particular interest to small and microbusinesses is, of course, newsletters.

Would email newsletters be considered transactional or relationship messages? Or both? Or neither? What about newsletters containing third-party advertisements? What about newsletters containing in-house advertisements, or affiliate links? As FTC staff wrestled with the various uses of bulk email, many more complexities emerged than I’m sure anybody either on Capitol Hill or at the agency anticipated.

To be honest, it is much easier to simply arrange your newsletters to comply with the CAN-SPAM regulations than it would be to wade through those regulations to figure out whether your newsletter has to comply or not. The odds are that you are already doing most, if not all, of what is required and there is no real need to give yourself a headache, too.

As for email marketers, the requirements are pretty clear. You need to keep your operations transparent and ethical, keep yourself easily identifiable and able to be contacted if necessary, and keep an eye on your affiliate program participants to make sure they aren’t spamming on your behalf. It is not really a matter of the CAN-SPAM Act to make you responsible for your affiliates but there is judicial precedence for it.

Besides, it’s just a smart thing to do. You don’t need other people creating a reputation for you as a spammer, do you?

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About the Author: Dawn Rivers Baker, an award-winning small business journalist, regularly reports and analyzes small business policy and research as the Publisher of the MicroEnterprise Journal, where the nation’s business meets microbusiness. She also publishes the Journal Blog.

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