A Compliance Guide for Business
Do you use email in your business? The CAN-SPAM Act, a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations.
Despite its name, the CAN-SPAM Act doesn’t apply just to bulk email. It covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including email that promotes content on commercial websites. The law makes no exception for business-to-business email. That means all email – for example, a message to former customers announcing a new product line – must comply with the law.
Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $41,484, so non-compliance can be costly. But following the law isn’t complicated. Here’s a rundown of CAN-SPAM’s main requirements:
Q. How do I know if the CAN-SPAM Act covers email my business is sending?
A. What matters is the “primary purpose” of the message. To determine the primary purpose, remember that an email can contain three different types of information:
If the message contains only commercial content, its primary purpose is commercial and it must comply with the requirements of CAN-SPAM. If it contains only transactional or relationship content, its primary purpose is transactional or relationship. In that case, it may not contain false or misleading routing information, but is otherwise exempt from most provisions of the CAN-SPAM Act.
Q. How do I know if what I’m sending is a transactional or relationship message?
A. The primary purpose of an email is transactional or relationship if it consists only of content that:
Q. What if the message combines commercial content and transactional or relationship content?
A. It’s common for email sent by businesses to mix commercial content and transactional or relationship content. When an email contains both kinds of content, the primary purpose of the message is the deciding factor. Here’s how to make that determination: 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 or relationship content does not appear mainly at the beginning of the message, the primary purpose of the message is commercial. So, when a message contains both kinds of content – commercial and transactional or relationship – if the subject line would lead the recipient to think it’s a commercial message, it’s a commercial message for CAN-SPAM purposes. Similarly, if the bulk of the transactional or relationship part of the message doesn’t appear at the beginning, it’s a commercial message under the CAN-SPAM Act.
Q. What if the message combines elements of both a commercial message and a message with content defined as “other”?
A. In that case, the primary purpose of the message is commercial and the provisions of the CAN-SPAM Act apply if:
Factors relevant to that interpretation include the location of the commercial content (for example, is it at the beginning of the message) how much of the message is dedicated to commercial content; and how color, graphics, type size, style, etc., are used to highlight the commercial content.
Q. What if the email includes information from more than one company? Who is the “sender” responsible for CAN-SPAM compliance?
A. If an email advertises or promotes the goods, services, or websites of more than one marketer, there’s a straightforward method for determining who’s responsible for the duties the CAN-SPAM Act imposes on “senders” of commercial email. Marketers whose goods, services, or websites are advertised or promoted in a message can designate one of the marketers as the “sender” for purposes of CAN-SPAM compliance as long as the designated sender:
Meets the CAN-SPAM Act’s definition of “sender,” meaning that they initiate a commercial message advertising or promoting their own goods, services, or website; is specifically identified in the “from” line of the message; and complies with the “initiator” provisions of the Act – for example, making sure the email does not contain deceptive transmission information or a deceptive subject heading, and ensuring that the email includes a valid postal address, a working opt-out link, and proper identification of the message’s commercial or sexually explicit nature.
If the designated sender doesn’t comply with the responsibilities the law gives to initiators, all marketers in the message may be held liable as senders.
Q. My company sends email with a link so that recipients can forward the message to others. Who is responsible for CAN-SPAM compliance for these “Forward to a Friend” messages?
A. Whether a seller or forwarder is a “sender” or “initiator” depends on the facts. So, deciding if the CAN-SPAM Act applies to a commercial “forward-to-a-friend” message often depends on whether the seller has offered to pay the forwarder or give the forwarder some other benefit. For example, if the seller offers money, coupons, discounts, awards, additional entries in a sweepstakes, or the like in exchange for forwarding a message, the seller may be responsible for compliance. Or if a seller pays or gives a benefit to someone in exchange for generating traffic to a website or for any form of referral, the seller is likely to have compliance obligations under the CAN-SPAM Act.
Q. What are the penalties for violating the CAN-SPAM Act?
A. Each separate email in violation of the law is subject to penalties of up to $41,484, and more than one person may be held responsible for violations. For example, both the company whose product is promoted in the message and the company that originated the message may be legally responsible. Email that makes misleading claims about products or services also may be subject to laws outlawing deceptive advertising, like Section 5 of the FTC Act. The CAN-SPAM Act has certain aggravated violations that may give rise to additional fines. The law provides for criminal penalties – including imprisonment – for:
Q. Are there separate rules that apply to sexually explicit email?
A. Yes, and the FTC has issued a rule under the CAN-SPAM Act that governs these messages. Messages with sexually oriented material must include the warning “SEXUALLY-EXPLICIT:” at the beginning of the subject line. In addition, the rule requires the electronic equivalent of a “brown paper wrapper” in the body of the message. When a recipient opens the message, the only things that may be viewable on the recipient’s screen are:
No graphics are allowed on the “brown paper wrapper.” This provision makes sure that recipients cannot view sexually explicit content without an affirmative act on their part – for example, scrolling down or clicking on a link. However, this requirement does not apply if the person receiving the message has already given affirmative consent to receive the sender’s sexually oriented messages.
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Email Bounce Statistics & Client Restrictions
CEIPAL uses industry standard metrics to report on how your emails are performing. You can get insights into the number of emails that are valid, how many have been delivered, and how many have been opened. Opens are a great indicator that your emails are engaging your recipients. This shows that the email is interesting enough to a recipient for them to view. CEIPAL strives hard to maintain a 97% delivery rate in most of their email distribution campaigns. However, the results might vary based on the quality of the email address list, type of content, and ISP spam traps of the receivers.
Automatic Global Unsubscribe
A global unsubscribe occurs when a subscriber chooses to unsubscribe from every email sent from CEIPAL. CEIPAL manages this list, so a subscriber’s status changes to Unsubscribed on the global list when they globally unsubscribe. None of our clients can email that subscriber, regardless from what message they clicked the unsubscribe link.