How To Ensure Email Compliance With The CAN-SPAM Act

Really, Montanna? CAN-SPAM? Yup, I did not make that up - that's all courtesy of the Federal Trade Commission. CAN-SPAM stands for The Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and applies to email marketing of all forms. From newsletters, notifications of an upcoming sale on your website to cold-email marketing, and everything in between.

I don't know about you, but my inbox is an utter mess and the CAN-SPAM Act does a great job at outlining what email marketing needs to look like. And you don't want to be caught on the wrong end of this Act because the fine for non-compliance can be up to $43,280 PER instance. Let's say you sent out a newsletter to 10 of your subscribers and the newsletter was not compliant, each of those emails counts as one instance. $43,280 x 10 = $432, 800 - I'm sure we all have $400k laying around...If you actually do, hit me up, let's be friends.

The good thing about this Act is that the requirements are not hard or confusing at all, surprising right!? Normally the goal of laws like this is to be as hard and confusing as possible it seems.

The following are some of the main sections of the Act that you need to be aware of:

Don’t use false or misleading header information. Your “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. There really should be no reason for non-compliance with this.

Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message. I'm sure by now we've all learned that having a catchy subject line is more likely to get opened than something boring, but you do need to be careful doing that. Make sure the fun subject line actually links to something in the email. A few months back I received a marketing email from someone in my industry (business compliance) and I have no idea how they got my info, but the subject line was "Following up about you drafting my privacy policy" - my first thought was "Nice, they're ready to sign, but wait, this must be a really old contact, I haven't talked to anyone about this recently..." We all know where this is going...the email was actually telling me how great their policies are and that I should buy one. So, don't be that person - it's a $43,280 fin waiting to happen and obviously a sure-fire way to lose that person as a subscriber and future client.

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Don't make it hard to unsubscribe. You must have an unsubscribe option, cannot require an excessive amount of information from them to unsubscribe and the unsubscribe button must be clear and inconspicuous. Nowadays having an unsubscribe button is automatic, but chances are you can customize it a bit, I suggest just leaving it alone, there really is no reason to customize it unless you want it to match your brand colors. If that is the case, make sure that the color doesn't blend into the background color and hard to see. Doing so actually violates three Acts, CAN-SPAM, ADA (The American's With Disabilities Act), and WCAG (Website Content Accessibility Guidelines).

Don't place transaction information in a marketing email. Transaction information can be information for a project they have hired you for, sending a proposal, login information for your project management platform, etc. So you can't mask an email to look transactional in nature and squeeze in some type of marketing.

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

Tell recipients where you’re located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.

Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you 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. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.

Monitor what others are doing on your behalf. The law makes it clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible. The buck always stops with you - after all, that's why you started your business, isn't it?

Sexually explicit images and content. When sending emails of this nature, you must clearly label the email as sexually explicit in the subject line, when the email is first opened and it needs to be clear and inconspicuous. Images are required to not be visible in the space of the message when it is first opened or "above the fold". The recipient must have to scroll to view any images. This is as far as I will go into regarding the pornography portion of the Act. If you need more information on this section, email me or schedule a complimentary consultation. I have no judgment but having certain information on this topic requires compliance with different laws and regulations to have content like that on my site.

I have created a brief do's and don'ts PDF for you to save and keep on hand to refer back to quickly and easily when you are sending out marketing emails. You can also watch me give a Live on CAN-SPAM Act with my attempt at making jokes. Head over to Darcy Geho's FB group, Small Business Marketing & Motivation.

Now head over and double-check to make sure you are compliant with all of the above, it won't take you more than 30 minutes and that is very generous and including you getting interrupted at least 3 times.



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This is not legal or financial advice and does not constitute a client-consultant relationship between you and Montanna Washburn or Urban Consulting, LLC d/b/a Complianceology. The information in this post is true and accurate at the time published and is subject to change at any time. You are encouraged to conduct your own due diligence, schedule a consulting call with Montanna, or speak with your legal counsel.

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