You probably are saying to yourself, “I don’t spam, so why read this column?” Or “I send e-mails only to my customers.” Or “I send e-mails only to customers who have given me their e-mail addresses.” Or “I send e-mails only to customers who have given me permission to send them. That means that I don’t send spam and don’t need to pay attention to the Can-Spam Act.” Wrong!
The Can-Spam Act, which became effective on Jan. 1, 2004, covers all e-mail whose primary purpose is to promote or advertise a product or a service — business-to-consumer and business-to-business. It does not matter that you are sending a commercial e-mail to an individual who gave you permission to send it, or opted in. The requirements of the law still apply.
A commercial e-mail must
- have a truthful header (information most of us do not see but that discloses the Internet provider address where the message originated and the path it took through cyberspace);
- have a truthful “from” line;
- have a subject line that relates to the message and is not deceptive;
- have an Internet-effective means for the recipient to ask not to receive any more e-mails from the sender (an opt-out or removal mechanism);
- have the opt-out or removal mechanism operative electronically for 30 days after the message is sent;
- honor the opt-out within 10 business days of receipt;
- include a valid physical postal address of the sender in each message (a P.O. box or drop box would not be sufficient under DMA guidelines — only a street address would suffice); and
- let the recipient know that the message is an advertisement or solicitation. (This does not require you to use an “ADV” label.)
Those requirements make common sense. Most of you probably honored the law long before its passage. But there are some potential problems in application that every cataloger must avoid.
The law applies to e-mails whose primary purpose is to promote a product or a service. The Federal Trade Commission (FTC) is holding a rulemaking to help define what the primary purpose of a message is. In any event, if an e-mail is sent as a bill, its primary purpose is not to advertise. If a newsletter is sent via e-mail, even if it contains advertising, its primary purpose likely is informational, not advertising.
The initiator and the sender
“Initiator” and “sender” are the two most important definitions in the Can-Spam Act. Understand them, and you understand who is responsible for following the law.
An initiator is a person who transmits an e-mail message to recipients or who induces or procures the transmission of an e-mail message to recipients. If Jerry Cerasale Catalog has its employees send a sale notice to customers via e-mail, Jerry Cerasale Catalog is an initiator. Likewise, if JCC hires Mail Forwarder Co. to transmit the sale e-mail, JCC is still an initiator. Moreover, Mail Forwarder would also be an initiator. (Can-Spam states that there may be more than one initiator.)
The sender is a party who is an initiator and whose product or service is promoted in the e-mail. JCC would be the sender in both of the above examples.
When sending the sale e-mail in the first example above — in which the catalog employees send the e-mail — JCC would be responsible for the accuracy of the header information, the subject line, and the “from” line. It would be required to scrub the mailing list with its opt-out list, have the opt-out notice in the message, have the opt-out mechanism effective for 30 days, honor opt-out requests within 10 business days, and show its postal address.
In the second example, in which Mail Forwarder transmits the e-mail, JCC would have the same responsibilities. But Mail Forwarder would also be responsible for honest header information, the subject line, and the “from” line. Mail Forwarder would have to ensure that there is an opt-out notice regarding future e-mails from the sender (JCC) and a postal address for the sender. Mail Forwarder also may include an opt-out from receiving future e-mails from Mail Forwarder, but that is not required.
Let’s say the e-mail is sent to a list obtained from Consumer List Co. rather than to the customers of JCC. The catalog is still the sender; Mail Forwarder is still an initiator. Consumer List Co. is neither, so it has no obligations under Can-Spam. But a list could raise problems for the sender if it were compiled via dictionary attacks (using software that connects to a server and then randomly generates e-mail addresses) or harvesting (the use of “scavenger bots” to scan Web pages, news-groups, chat rooms, and the like to collect e-mail addresses). Can-Spam does not outlaw those practices — but if there is a violation of the act, and the message were sent to a list compiled by dictionary attacks or harvesting, that would be an aggravated offense, and damages could be tripled. So any sender should have a contract lawyer ascertain the origins of any list to which its messages are sent.
Brand name or line of business
As noted earlier, the sender must provide an option for the recipient to stop receiving future e-mails from the sender. Can-Spam allows the sender to establish a brand name or line of business to become the sender so that the halting of future communications applies only to that particular line of business, not to the entire parent company).
For example, if Procter & Gamble were sending e-mail coupons for Tide, P&G could offer an opt-out for Tide promotions only. The e-mail message, however, must contain a promotion for only Tide. In this way, P&G could still send promotions for Crest.
The line of business could also be established for each catalog title. Let’s say JCC has J-Ware for women’s apparel and C-Ware for men’s clothing. If the sale e-mails were only for J-Ware, JCC could offer an opt-out from future e-mails from J-Ware rather than an opt-out from JCC entirely. If you have multiple brands, you may want to consider this option.
Now isn’t this simple? So what is all the fuss about? The fuss probably stems from joint marketing.
When two or more marketers join to promote a product or a combination of products, who is the sender? Sadly, there is no clear-cut answer. The FTC is looking into this in a rulemaking.
Two examples show the problems of joint marketing for catalogers. In the first example, a catalog has an agreement with a credit-card company to offer an affinity credit card. JCC sends to its customers an offer for a Jerry’s Visa card via e-mail. Who is the sender? JCC is offering its affinity card, but Visa is offering its credit card as well. If both are senders, then the customer list must be scrubbed against the inhouse suppression lists of both JCC and Visa — no small task. I would argue (and there are many who disagree) that the answer lies in the primary purpose of the message. Is the primary purpose for Visa or for JCC — in my opinion that tells you who the sender is. The contract between the two may shed light on the issue.
Now let’s say JCC offers Brand Y products in its catalog and is having a sale on the line. If JCC sends an e-mail to customers announcing it, who is the sender here? JCC is the sender — it is advertising products it sells and delivers to customers. Catalogers should be aware of this example because Brand Y may receive complaints about the message.
Though it’s complicated, don’t let the Can-Spam Act cripple your e-mail campaigns. If you follow the law, you will be fine, and you will still be able to market. The best piece of advice I can give you is to centralize e-mail deployment in order to scrub all commercial e-mails (whether they’re going to a list of many or to a single new prospective client) before they are sent out. When in doubt of whether the law applies to you, follow it.
Jerry Cerasale is senior vice president for government affairs at the Direct Marketing Association.