The Federal Trade Commission (“FTC”) recently announced a reform initiative aimed at eliciting comments from the general public on a host of federal regulations, including the landmark federal email law, Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”).
What is the FTC seeking to accomplish with the initiative?
As part of the initiative, the FTC is seeking input from consumers on whether CAN-SPAM has been beneficial to consumers and whether it should be modified. Additionally, the FTC has also requested comment from industry representatives concerning the email law’s compliance costs and whether CAN-SPAM should be amended to reflect economic and/or technological changes that have occurred in the nearly 15 years since its passage.
Broadly speaking, CAN-SPAM imposes requirements on the transmission of commercial email messages, imposing liability of up to $100 per violation. Importantly, the requirements include restrictions on the use of both false or misleading header information and deceptive subject lines. Likewise, senders of such commercial email must also identify their messages as advertisements, include a valid physical address, provide recipients with a mechanism to allow for opting-out of receipt of future email and honor such opt-out requests within 10-business days of the receipt of same. While the email law restricts who may bring claims for violation of CAN-SPAM, the cost of compliance and the potential liability for violating the email law have proven significant over the 15 years since enactment. The willingness of the FTC to revisit the law’s impact on legitimate email marketers is certainly welcome news to those operating in the space.
How to Avoid Email Law Related Liability
Those operating in the email marketing industry should be aware of various best practices that should be implemented to minimize the risk of liability under CAN-SPAM and its state email law equivalents. First, advertisers should confirm that their email marketing partners are taking proper steps to maintain compliance with CAN-SPAM and related state laws, such as California’s § 17529. Further, email marketers can implement proper protocols to ensure both their own compliance, as well as that of their respective affiliates. Above all, working with experienced email marketing counsel before the launch of any campaign in order to implement the practices and procedures necessary to prevent the sending of unlawful commercial email and to avoid being named in a “spam” lawsuit is of tantamount importance.