Commercial email is regulated by federal law, specifically the CAN-SPAM Act, and violations of the Act can be incredibly costly- up to $16,000 for each individual email that violates the Act.

What Type of Emails the Act Covers

The CAN-SPAM Act only applies to emails where the primary purpose of the email is either commercial or transactional/relationship. Commercial emails must comply with all requirements of the Act, while transactional emails need only comply with the requirement of no false or misleading header information.

How to Determine Whether an Email’s Purpose is Commercial or Transactional

If an email contains only commercial content, then its primary purpose is commercial. An email contains commercial content if it advertises or promotes a commercial product or service. An email contains transactional content if it contains information that relates to a commercial transaction the recipient has already agreed to, conveying information about an ongoing relationship with the recipient.

Mixed Content Emails

Many emails contain both commercial and transactional content, so determining the primary purpose of the email may be difficult. The FTC has suggested that if a recipient reasonably interpreting the subject line would likely conclude that the message contains an advertisement or promotion for a commercial product or service OR if the message’s transactional content does not appear mainly at the beginning of the message, then the primary purpose is commercial and all requirements of the Act apply to the email. Other factors to consider include the location of the commercial content, how much of the message is dedicated to commercial content, and how the commercial content is highlighted (color, size, graphics).

Requirements

1. Don’t use false, misleading, or deceptive information. The “from,” “to,” “reply-to,” and routing information must be accurate and identify the person or business who initiated the message. Also, the subject line must accurately reflect the content of the message.

2. Identify the message as an advertisement. You must disclose clearly and conspicuously that the message is an advertisement.

3. Tell recipients where you are located. The email must include your valid physical postal address, which may be your current street address, post office pox registered with the U.S. Post Office, or private mailbox registered with a commercial mail receiving agency.

4. Include an opt-out clause and mechanism. The email must contain a clear and conspicuous explanation of how the recipient can opt out of future emails. The opt-out clause must be easy for an ordinary person to recognize, read, and understand, so use type size, color and location in the message to improve clarity. You must give a return email address or another easy internet-based way to opt-out, such as a single page on an Internet website. The opt-out mechanism must include the option to opt-out of all commercial messages. Finally, make sure your spam filter doesn’t block the opt-out requests. Any opt-out mechanism must be able to process requests for at least 30 days after you send the message. You must honor the opt-out request within 10 business days and may NOT do any of the following: charge a fee to opt-out, require recipient to give you any personally identifying information beyond an email address, make the recipient take any step other than sending a reply email OR visiting a single page on an internet website. Finally, once a person has opted-out you may NOT sell or transfer their email addresses, even in the form of a mailing list.

5. Monitor Others Acting on your behalf. Even if you hire another company to handle your email marketing, you are still liable for violations of the Act, so you must ensure that the emails sent by the marketing company comply with the requirements of the Act.

If you have any questions on this Act, do not hesitate to contact me at klavelle@lavellelaw.com.