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VOL. 133 | NO. 155 | Tuesday, August 7, 2018

Follow the Rules for Sending Commercial Email Messages

Randy Hutchinson

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If you’re like me, you regularly receive emails from people or companies you don’t know, peddling products or services you have no interest in. Sorting through them can be time-consuming and annoying. If they don’t comply with requirements for sending commercial messages, they’re illegal.

The governing law is the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003, more commonly known as the CAN-SPAM Act. It applies to individual and bulk commercial emails sent to consumers and businesses. The act defines a commercial message as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.”

Messages concerning an agreed-upon transaction or other existing customer relationship are exempt from the provisions of the act. However, if an existing customer would reasonably interpret an email as an advertisement or promotion, it’s covered.

The FTC outlines these key requirements of the CAN-SPAM Act:

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 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.

Identify the message as an ad. The law provides a lot of leeway in how to do this, but the sender must disclose clearly and conspicuously that the message is an advertisement.

Tell recipients where the sender is located. The message must include a valid physical postal address, which could be a post office box or private mailbox established under U.S. Postal Service regulations.

Tell recipients how to opt out of receiving future emails. The message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from the sender in the future. The notice should be crafted in a way that’s easy for an ordinary person to recognize, read and understand.

Honor opt-out requests promptly. Any opt-out mechanism must be able to process opt-out requests for at least 30 days after the message is sent. It must honor a recipient’s opt-out request within 10 business days. The sender can’t charge a fee, require the recipient to provide 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.

Monitor what others are doing on the sender’s behalf. The law makes clear that even if a sender hires another company to handle email marketing, it can’t contract away legal responsibility to comply with the law. Both companies are liable for violations.

Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $41,484.

Reach Randy Hutchinson, president and CEO of the Better Business Bureau of the Mid-South, at rhutchinson@bbbmidsouth.org

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