Debunking Common Can-Spam Misconceptions – By Rachel Hirsch

by Sara Szado on April 15, 2016

In today’s hyper-connected world, email plays a more prevalent role than ever in our day-to-day lives. With today’s mobile technology, most people are never far from their email inbox, which is why email remains one of the easiest and most efficient ways to market to potential customers.

In 2003, Congress enacted the CAN-SPAM Act (the Controlling the Assault of Non-Solicited Pornography and Marketing Act), which regulates unsolicited commercial email. In February, the FTC announced that it intends to initiate a ten-year review of, and solicit public comment on, the CAN-SPAM Rule, which is the rules implementing the CAN-SPAM Act of 2003.

Despite having been enacted more than a decade ago, there are still some common misconceptions regarding the CAN-SPAM Act:

Misconception #1 – Every email message from a business is deemed a commercial message under the CAN-SPAM Act.

Fact: Not every email message from a business constitutes a commercial message. Rather, the email’s primary purpose must be the commercial advertisement or promotion of a product or service. Some messages contain both advertising and non-advertising content. In such scenarios, these messages have a commercial primary purpose if either: the recipient would interpret the subject line to mean that the message contains commercial advertising, or the recipient would determine from the body of the message that the message’s primary purpose is commercial advertising.

Misconception #2 – The CAN-SPAM Act requires senders to identify each commercial email message as an advertisement in the subject line.

Fact: The CAN-SPAM Act does not require senders to identify the message as an advertisement in the subject line. Initiators of commercial email only have to identify the message as an ad in a way that is “clear and conspicuous.” The law gives marketers flexibility in how to do that effectively, but remember that deceptive subject lines are illegal.

Misconception #3 – Email marketers who are given prior affirmative consent by potential customers to receive commercial messages do not need to comply with the CAN-SPAM Act’s commercial email requirements.

Fact: If recipients have given their prior affirmative consent to receive messages, the initiator is exempt from identifying the message as an ad, but that is it. All other CAN-SPAM requirements still apply.

Misconception #4 – A commercial email can only have one initiator or sender.
Fact: The FTC has brought several claims against both companies, whose products or service was advertised in the email, as well as the affiliate that sent the message. The company is deemed the sender, and the affiliate is deemed the initiator.

Misconception #5 – The CAN-SPAM Act only applies to traditional email.

Fact: Some federal courts have ruled that CAN-SPAM’s definition of “electronic mail message” includes commercial messages transmitted to a social network user’s inbox, news feed, wall, etc.

So if email marketing is your primary method of staying in constant contact with potential customers, make sure you subscribe to the CAN-SPAM Act and its implementing rules. And, when in doubt, retain qualified legal counsel to help you differentiate between misconception and fact.

Rachel Hirsch is a Senior Associate at Ifrah PLLC, a law firm in Washington, D.C.

This article appeared in issue 34 of FeedFront Magazine, which was published in April 2016. https://issuu.com/affiliatesummit/docs/feedfront-34

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