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What Is the Can Spam Act?

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 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 is 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.

Major Points of Compliance in the Can-Spam Law

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.
  • Provide a visible and specific way for the receiver to opt out.
  • Honour the unsubscribe request within 10 business days.
  • Use clear information in the “From,” “To,” and “Subject” fields.

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.

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 has the intent of selling a product or service, it is commercial, 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.

Is There an Opt-In or Not?

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. That’s not necessarily the case unless the form for becoming a subscriber clearly states that they agree to receiving communications from that company. This leads to another issue that is often misunderstood.

Can You Sell 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.

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.

A Closer Look at the Subject Line 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. Although each commercial email must contain the company’s physical mailing 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

Penalties which 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. 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 can impose.

Working Around the Can Spam Law – A Win/Win Solution

Now then, 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.

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