Proper Use and Pitfalls of Email Marketing

While it is possible I have missed it, little information has been published recently about the issues arising from sending unsolicited commercial emails generally called “spam.” This does not mean, however, that the concerns about spam have disappeared or that such emails may be sent with impunity. The issue of unsolicited emails is very much with us, and users of email marketing must be aware of and compliant with it.

I do not agree, however, with the assurance of the Federal Trade Commission, the principal enforcer of the anti-spam law, that “following the law isn’t complicated.” The rules can be confusing and the price of mistakes is potentially huge. For example, the maximum civil penalty for violations of the CAN-SPAM Act has been increased to $40,654. CAN-SPAM, by the way, stands for Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, 15 U.S.C. 7701-7713.

Space constraints limit the amount of detail that can be covered in this type of article, so I am going to provide a general summary and a set of links that take you to, I believe, some of the best outlines and checklists you can use to manage your commercial email practices. At the end, I will touch on the related subject of “junk faxes.”

As background, you may want to look back at the excellent article by Richard D’Ambrosio in the Aug. 22, 2016 Travel Market Report entitled “Super Charge Your Email Marketing Campaigns.” That piece contains much good advice about marketing with emails. Just be aware that the use of a third-party email system does not relieve you of the responsibility to comply with the CAN-SPAM Act.

The CAN-SPAM rules only apply to emails whose primary purpose is commercial. The regulations issued by the FTC address the question of “primary purpose” in detail, but you should generally just assume that all marketing messages, offers and general promotions sent by your agency satisfy the concept of “commercial.” If you really want the details, they are found in 16 CFR Part 316.

Easy opt-out must be included
The basic idea behind the CAN-SPAM law is that in all commercial emails, the sender must be clearly identified, and that if the receiver elects not to receive more emails from that sender, a free and easy method for securing such relief must be provided in each email sent.

The law to accomplish this is quite detailed, because the low cost of sending bulk emails and the normally low return rate on such efforts induce people to cut every corner possible to continue marketing and selling through bulk emails, often to the great annoyance of the recipients.

Fortunately, there are a number of excellent summaries of the rules available at no cost. Compliance with them will avoid a lot of potential trouble, including avoiding the mistake of annoying actual or potential customers of your agency. Among the best is one produced by the Cornell Law School, which includes these rules:

1. The “header” of the commercial email (indicating the sending source, destination and routing information) must not contain materially false or materially misleading information;

2. The “subject” line must not contain deceptive information;

3. Every commercial email must clearly and conspicuously disclose that it is an advertisement or solicitation;

4. The email must include some type of return email address, which can be used to indicate that the recipient no longer wishes to receive email from the sender (i.e., the recipient wants to “opt-out”);

5. The email must clearly and conspicuously inform the recipient of the opportunity to opt-out of future emails from the sender;

6. When an opt-out has been received, the sender’s email system, his own or one hired for the purpose, must stop sending commercial emails to that recipient; and

7. The email must show a valid, physical postal address for the sender.
It is acceptable to ask the recipient why she is opting out, but the giving of a reason may not be a condition for acting on the opt-out. You may not place other obstacles in the way of the person who wants to opt out. Follow the intent of the law, and you will have no problems in this area.

Federal and state enforcement
The FTC is not the only enforcement body for spam; states also have enforcement authority under the statute. State enforcement authorities may seek injunctions and damages. The FTC can intervene in such cases. State enforcement is potentially the most threatening because it is more easily reached by aggrieved citizens.

Note that the CAN-SPAM Act is a two-way street. If your agency is being bothered with unsolicited commercial emails, you can join the legions who file complaints with the FTC. See https://www.consumer.ftc.gov/articles/0038-spam
Regulation of email spam is similar in purpose and approach to restrictions imposed on commercial faxes. Faxing in the

Information Age is not as common as it once was, but failure to follow the rules can spell costly trouble. You can learn everything you need to know about the rules here.

I conclude with this reminder: The cost of mistakes in sending commercial emails and unsolicited advertising faxes can be very steep, far in excess of any benefit from bulk sending of such messages. The best path here is to learn the rules, make them part of your business routine, and periodically review them with staff to be sure everyone understands the importance of strict compliance.