What is the CAN-SPAM Act and How Does it Work?

Feb 7, 2023

Over the years, spam has been a constant thorn in the sides of consumers and marketers alike, obviously from different sides of the fence.

While individual consumers are irritated by the sheer number of unsolicited commercial emails reaching their inboxes, businesses, and marketers are tasked with complying with the Can-Spam Act of 2003.

As you can see, it is not a new problem by any stretch of the imagination, as the law has been in effect in the United States of America for just about two decades.

Subsequent similar legislation was also in effect in Canada and throughout Europe in later years. In Canada, the laws are known as Canada’s Anti-Spam Legislation, CASL, while the European legislation is the General Data Protection Regulation, GDPR.

So, what exactly are these anti-spam laws, and how do they affect mass email marketing? To begin with, the laws refer only to commercial communications that intend to sell a product or service.

What the Can-Spam Act covers

Originally, the Act was meant to cover unsolicited commercial emails to private and business consumers. However, in recent years, the laws have been interpreted to include almost any kind of digital communication to sell a product or service.

The Federal Trade Commission, FTC, offers links on its Can Spam page that covers robocalls and text messages. Remember, the operative word in all this is ‘unsolicited’, so that needs to be the prime consideration of being compliant in any email, text, or robocall marketing strategy.

In short, your electronic mail message should only go out to an email address where the recipient has agreed to receive commercial messages from you before.

Major points of compliance in the Can-spam Act

In order to be compliant with the Can-Spam Law in the United States and similar legislation in Canada and Europe, there are basic points of compliance that must be strictly adhered to. In order to be within the confines of the law, all commercial emails must:

  • Contain the sender’s physical postal address in every email sent. The physical address should be in every email that goes out.
  • Provide a visible and specific way for the receiver to opt out and give your recipients opt-out preferences, especially for commercial emails.
  • Honor the unsubscribe request within 10 business days and stop sending emails to their private mailbox.
  • Use clear information in the “From,” “To,” and “Subject” fields. Do not use misleading headers in your commercial e-mails.

Those are just the basic rundown of key compliance points that can be further detailed. For example, it must be clear and easy as to how the recipient should go about unsubscribing, and there cannot be a fee associated with the process.

To that effect, unsubscribing should be quite simple, with perhaps a single link to complete the process, and no more. When it comes to the subject field, the email’s intent must be clear.

Can-Spam Law and Unsolicited Commercial Digital Communications

Here is where it tends to get a bit more difficult to understand the rules regarding digital communications. There are three types of emails that are often sent as part of an email campaign. These include:

Of those three, transactional and relationship emails are exempt from Can-Spam legislation because there is already a transaction between the sender and the recipient or some other relationship, such as providing information on products or services already purchased.

It means you can send commercial content in your e-mail messages simply on the grounds of previous connections.

Then there are combinations of the three types of commercial emails, so the subject line needs to be quite clear.

If the major intent of the email is the intent to sell a product or service, it is a commercial product intent, even if there is a small portion dedicated to providing information not related to marketing. It can be a slippery slope at this point so make sure that your subject is clear as to the intent of the communication.

Opt-in is necessary

You will read on some sites that there is no need for consumers to opt-in to receiving commercial emails. Once again, remember that a commercial email, text, or robocall is a marketing strategy with the key intent of selling a product or service.

However, the information on the FTC website clearly states that commercial emails are marketing tools sent to subscribers. Here is where there seems to be a miscommunication of sorts. You would think that as a ‘subscriber,’ the consumer (business or private) has opted into receiving commercial communications.

If you have not collected emails using this strategy, you’ll get opt-out requests all the time, which is what every email marketer wants to see – rather than being labeled as spam. Honor the opt-out requests, otherwise, you might run into problems with internet service providers.

Selling commercial email lists

Here again, there is a great deal of misunderstanding on the concept of selling commercial email, text, or robocall lists. To be safe, it is suggested that you use very specific wording in your subscription forms. Many businesses have gone to adding the phrase, “and our partners” on their subscription forms to cover themselves when selling commercial email lists to other businesses.

However, this is one of the more fraudulent practices that can get most commercial websites in trouble.

Sadly, even the language on the Federal Trade Commission’s website can be a bit vague. You will find that there are times when selling lists are referenced as being illegal while other times, they mention how to be compliant when selling lists. It seems to all boil down to, once again, that all-important subject field in the commercial email.

In any case, buying or selling lists goes against CAN-SPAM rules and if you want to protect yourself against CAN-SPAM violations – simply don’t do it. You’re just going to end up sending unsolicited emails and ensure all your future messages head straight to spam.

Subject lines in commercial emails

Over and over again, no matter which reference site you read or on the FTC website itself, it appears to be the subject line that holds the key to compliance. It must be made abundantly clear what the intent of that communication is in the subject line. All commercial messages should be easy to understand straight from the subject line.

Although each commercial email must contain the company’s physical address and clear “To” and “From” fields, the subject line is most heavily weighted. The reason why that is so important is the whole concept of misleading the consumer. Not only is it ethically wrong to do so but it is also illegal.

Also, a clear subject line gives the recipient a clue as to whether or not they want to read the communication, because they may not have subscribed, or opted in. Once again, the “opt-in” language is often up for debate, even on the government site.

Penalties for non-compliance with the CAN-SPAM act

Penalties that can be imposed for non-compliance are no laughing matter. In the United States, you can be fined as much as $46,517 per email and several people can be held responsible as well.

Sometimes false or misleading advertising can be viewed as a criminal offense so there is always the possibility of jail time in the most severe cases of going against the CAN-SPAM act with your email advertising.

With that said, fines and penalties that are severe are few and far between. Today’s marketers have been working under the Can-Spam Act for the better part of 20 years, so they have the rules locked down.

The CAN-SPAM act and customer trust

Let’s get back to the importance of that subject line for just a moment. One thing today’s consumer truly values is trust in the brands they deal with. Gone are the days in which consumers sought the best bargain basement prices because most are willing to pay for products and services sold by trusted brands.

Trust is a huge issue today, so pay careful attention to the subject line highlighting the reason for the communication. False or misleading subject lines will result in a lack of consumer trust and that penalty is much greater than any fine the FTC or other federal agencies can impose.

Each electronic mail message you create should go out to a legitimate email address. It’s not just the issue of civil penalties – hurting trust with your email messages can damage your reputation for good.

How to work around the CAN-SPAM requirements

There is a way to avoid all that fear of mass mailing to consumers. Remember that a mass email marketing plan can be weighted heavily on transactional or relationship communications with a very small segment which can be construed as commercial. That would be the portion of the email that has the intent of selling a product or service.

Bear in mind that we are living in an age when consumers are quite savvy. It is the age of the Information Superhighway, and so consumers are more informed than at any point in history. What many brands have begun doing is using mass emailing campaigns with useful information. It could be instructions for creating home remedies for the common cold or instructions for building your own off-grid solar power system. You may not need more than a single link to your website where you sell products or services they might require.

By providing information the recipients of your mass email campaign would appreciate reading, you can do more than link to your product pages.

In fact, some businesses don’t even go that far! They use a letterhead or banner linked to their company page, and that’s the totality of how they build traffic to their site. Consumers who click through will most often do so because of the beginnings of trust.

Give them solid information they can sink their teeth into, and watch how quickly you have attracted their attention.

The final note is that while you want to stay compliant with the Can-Spam Law, you can do more by capturing the interest of your audience in the email. Use your website to sell to them but your email to get them there. It’s a Win/Win workaround to the Can-Spam Act every time.

Can spam act wrapped up

Want to make sure your commercial email messages don’t go against the CAN-SPAM act? Make sure to validate each business email on your list. Sending out unsolicited e-mails is just one way to get in trouble.

With Bouncer, you can remove outdated, invalid, duplicate, misspelled and all other types of email addresses. That way, you can send bulk email campaigns safely.

Sign up for Bouncer today and validate your first 100 emails for free!

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