Create promotional emails that reduce your legal liabilities and honor recipient rights.
The CAN-SPAM Act applies to all emails with commercial or promotional intent sent by any business to US recipients. According to the Federal Trade Commission, an email must comply with the law if recipients can reasonably interpret it as commercial or promotional in nature. Such emails must comply with the specifications below to avoid a fine of up to $46,517 (This number is accurate at time of writing, check the link for the most recent number).
Two email types are exempt from CAN-SPAM compliance:
- Transactional emails that facilitate or confirm a transaction that the recipient has already agreed on.
- Relationship emails that inform the recipient about warranty updates, safety recalls, security information, membership and subscription updates, loan payment due dates, employment updates, or other information that help facilitate an ongoing business relationship.
Clearly indicate both the sender and recipient. For emails from multiple organizations to the same audience, agree beforehand on whom the designated senders will be. However, each organization will be liable in case of any CAN-SPAM violations.
The FTC considers a subject line deceptive if the sender’s goal is to intentionally mislead recipients.
Clearly identify the email as promotional, unless your audience has specifically opted in to receive promotional emails from you.
Typical ways to clearly make the advertisement notice stand out include:
- A note at the top in a different font
- A note at the top in a different font color
- A note at the top in a different font size
- A header banner including words like advertisement, solicitation, or promotion.
For users who have previously subscribed to promotional messages, senders can assume that the message will be identified as an advertisement. However, this exception only applies if your audience specifically opted in to receive the type of message you are sending.
The business address can be any of the following:
- Your current street address in the U.S.
- A post office box registered with the U.S. Postal Service
- A private mailbox registered with a commercial mail receiving agency that complies with current USPS regulations.
Allow recipients to easily opt out of future communications by including a clear unsubscribe link in the email footer.
Include a clear explanation of what action your audience should take to avoid receiving promotional emails from you in the future. The process can only follow one of two paths:
- A link for your recipients to click, leading them to a single web page to confirm their request.
- An email address to which recipients can send their request.
Let your audience opt out of receiving specific types of messages - for example, sales discounts or announcements about new products. However, ensure that they can easily unsubscribe from all future messages.
Senders cannot require a fee to opt out of emails or ask for anything more than the recipient’s email address. Once recipients have opted out, selling or transferring their email addresses will violate the CAN-SPAM Act.
Work with any partners or influencers sending promotional emails on your behalf to ensure they follow the same steps.
As long as any entity affiliated with your business is attached to the message, you’ll be considered legally liable. Complying with CAN-SPAM regulations means ensuring that any marketing agencies, email companies, ecommerce partners, and other third parties who send emails on your behalf follow the same rules outlined above.