Email Lists and CAN-SPAM: What You Need to Know

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If you have a blog, you may be interested in adding your Facebook friends or LinkedIn contacts to your email list. Will doing so get you in trouble?

What happens if you obtain a thousand contact emails via a Facebook or Twitter promotion and then wish to email them with a product promotion?

Welcome to the CAN-SPAM Act

The reason I am asking these questions is because, back in 2003, the FTC enacted the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography And Marketing). Yep, your marketing emails have been lumped in with porn. Specifically, this law governs all commercial email; how it is supposed to look, be sent, and be opted-out of.

Furthermore, penalties for non-compliance are pretty steep- a business (or an individual running a business) can get fined $16K per each violating email. So, if you have even 1,000 subscribers on your email list and get dinged for CAN-SPAM violation, you could theoretically end up paying $1,000 x $16,000 = A lot of money.

On a lesser note, even if you don’t end up getting fined, your domain name could get blocked as a mail server, effectively killing your business.

CAN-SPAM Do’s and Don’ts

When it comes to the FTC’s CAN-SPAM Act, there are various do’s and don’ts regarding how business emails should look and what they should offer to the consumer. The Do’s go as follows:

Do include clear ‘From’ and ‘To’ areas in your emails, including your actual email address and domain name.

Do provide a clear ‘Reply To’ notification in case the recipient wishes to contact you directly.

Do identify the email as an ad. Let your recipients know right in the subject line what you are promoting and why.

Do include your actual physical address; most automated email systems (e.g., aWeber) will require that you provide this information before you can send emails through them. Fortunately, you can obtain and use a P.O. box address instead of your real home address to ensure personal privacy.

Do provide the recipient with an opt-out option and comply with opt-out requests within 10 days.

Do track what your customers are doing with promotional and paid content on your behalf. For example, if you compensate a customer with a coupon or merchandise in exchange for sharing your content with a Facebook friend, you are still legally responsible for CAN-SPAM compliance.

Do track third party marketing firms that are working on your behalf. If these firms fail to be CAN-SPAM compliant, you are still legally responsible for their actions.

Do look at and comply with the additional requirements imposed on sexually explicit material (assuming you are sending it). Such material must be clearly marked in the subject line of your emails as sexually explicit and come with a digital ‘brown paper wrapper’ in the body of the message.

And the don’ts:

Don’t require any additional personal information from the recipient (beyond the email address) once s/he indicates a wish to opt-out. Email recipients should also not have to visit more than one web page in order to opt-out.

Don’t sell your email list opt-outs to a third party marketer or company.

Do your emails need to comply with CAN-SPAM Act?

The most common question that you may have regarding CAN-SPAM is if your emails qualify under its requirements and restrictions. In short, if you are engaging in promoting or selling any kind of product or service to your subscribers, then yes, your emails qualify. This also includes emails that you are sending to other businesses (versus only consumers).

The Act categorizes business emails into three categories: Commercial, Transaction/Relationship, and Other.

Commercial emails, which are defined as emails that clearly promote or sell something, are the most strictly regulated and must comply with all the rules set down by CAN-SPAM.

Transaction/relationship emails involve transaction follow-up and/or information and are typically expected by the consumer; thus, they are less tightly regulated. These emails do still need to contain the correct sender and address information, however.

The other category includes emails that are not commercial or transaction/relationship in nature; these emails are not regulated.

Unexpected CAN-SPAM allowances

Interestingly, the CAN-SPAM Act says very little about how you can go about collecting subscriber emails. For example, if you were to collect consumer emails simply by promoting a product giveaway on Facebook or Twitter, you could later use these emails to send commercial content.

Likewise, as long as your email subscribers haven’t unsubscribed from your email list, you can actually sell that list to other individuals and businesses. This is also why, on the flip side, you sometimes end up bombarded with commercial emails as soon as you opt-in to even one subscriber list.

Theoretically, anyone who has freely given you his or her email address qualifies as a potential commercial email recipient. So, while emailing your friends and family with endless promotional emails may make you a hated individual (and ex-friend), it will not get you in trouble with the FTC.

With CAN-SPAM, over-compliance is best

In summary, your best bet, when it comes to not getting in trouble with the law and also keeping your email subscribers happy, is to go above and beyond what the FTC requires. Don’t just do minimal due diligence to avoid getting fined; unhappy email recipients will also be less likely to engage with your emails and buy your products or services.

Additionally, explain to your email recipients why you are emailing them and how you came across their emails- such good faith explanations go a long way towards building consumer trust and currying favor on your behalf.

Finally, don’t flood your subscribers with endless sales emails, or emails that contain sound clips or huge graphics files. Be careful when sending linked content too- that content may itself not comply with CAN-SPAM or inadvertently subscribe your subscribers to another list. In short, don’t be a #@$%head when it comes to sending commercial content to your subscribers.

Photo credit by janetgalore

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