Email Marketing – Do You Know What You Need to Stay Legal?

Important Note: We are going to look at the US CAN-SPAM law. This will be of concern to most people marketing to customers in the US. If you do not live in or market to the US then you should still follow the guidelines here. Doing so will mean you are likely to be sending safe email within your own country. However to be safe you should always consult a local lawyer.

CAN-SPAM 2003 – This law which came into play on June 1st 2004 is the “Controlling the Assault of Non-Solicited Pornography and Marketing Act” of 2003.

It was brought into law to try and control the tide of Spam email being received by millions and millions of people in the US. It gives lawmakers and federal prosecutors powers to fine people up to $16,000 per email sent if found guilty. It is a law that you do not want to get on the wrong side of.

However it is also relatively easy to remain compliant with (unless you are a spammer of course!)

The main provisions of the CAN-SPAM act require you to follow these rules if your email is commercial in content. In other words if you are emailing a friend or sending a transactional email (“Thank you for your purchase” etc) you are okay but if you are sending an email with commercial content you must –

• Clearly label commercial email as advertising
• Use a truthful and relevant subject line
• Use a legitimate return email address
• Provide a valid physical address
• Provide a working opt-out option
• Process opt-out requests within 10 business days

So what does this mean in the real world?

As mentioned before remaining compliant is relatively easy so let’s go through each point to see exactly what we need to do:

Clearly Label Commercial Email As Advertising – Basically we do not want to try and deceive our customers in any way. So we need something in the email that tells the customer that this is not just a friendly “friend to friend” email but an email designed to illicit a commercial response. We can do this by having wording in the email that tells the recipient that this is commercial. For example place a message in the footer stating “You are receiving this email because you signed up for our Special Offers list at”. This automatically included with most online services.

Use a truthful and relevant subject line – Again this is an easy one to follow. Don’t write “Just emailing to say hi” in the subject line and then only write about your latest special offers in the email. Not only will this annoy your customers but it will ensure that they only action they take is to hit the “Report Spam” button. The best way to write an accurate subject line is to write the email first and then use the subject line to summarise your email content, such as “This weeks special offers”

Note about transactional email: This is email that is sent out after some kind of transaction or purchase, such as a “Thank You For Your Purchase” or “Here is Your Download”. In general transactional emails are not covered by the CAN-SPAM laws but you should still be very careful if you add any marketing messages to them.

At the very least the content of the email should be no more than 20% promotional. And the promotions (for example, “Now you have purchased our widget maybe you might like to buy some widget cleaners”) should be appropriate to the transactional content. In other words selling add-ons is okay, or selling something that compliments the first product. But don’t try to sell things that have nothing to do with the original sale.

Use a legitimate return email address: Spammers use fake email addresses. So the quickest way to get labeled a spammer is to use some kind of email that doesn’t work, or one that confuses your customers. Even using an email that tells people not to reply such as noreply@ could be enough to get you in trouble. So ensure that your From and Reply To sections are filled in accurately and ensure that they properly identify you.

Provide a valid physical address: Again this comes from spammers trying to hide their location from the authorities. You must have a working address where you can receive mail. This can be a PO box or mailing address. Again you want this to work so your customers can get in touch with you if needed.

Provide a working opt-out option and Process opt-out requests within 10 business days: We’ll look at these two together here because this is something that is usually automated by your email software. Basically we need a way for the email recipient to opt out of all future mailings.

So you need something in your email that tells the customer how to opt out. A single link leading to an un-subscribe page is the best way. And that un-subscribe page cannot require any further information in order for the customer to be opted out. You can ask for more information, such as “Why are you leaving?” but it cannot be required. If the customer does not enter any information in this box, the un-subscribe process must still work.

If you don’t have an automatic link you can have a link to a page where the customer can request to be opted out. And you must make sure that the customer is removed from your lists within 10 days.

Some companies have the bad habit of using this 10 day grace period to send some final marketing messages to their customers. This isn’t recommended as the customer will likely think that the un-subscribe request failed and they will report you as a Spammer.


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