Is Your Business’s E-mail Marketing Compliant?

In today’s economy, most businesses do a substantial part of their marketing on the Internet, and use e-mail marketing to advertise their products and services. In an attempt to stem the flow of unwanted, unsolicited junk e-mail ("spam"), Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing Act, known as the "CAN-SPAM" Act, 15 U.S. Code Sec. 7701. Despite its name, the CAN-SPAM Act does not just apply to bulk e-mail. It covers all commercial messages, which the Act defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” including e-mail that promotes content on commercial websites. Thus, companies that do not think of themselves as “spammers” are in fact subject to the Act if they use e-mail in their direct marketing efforts. Notably, there is no exception for business-to-business e-mail so it is important that companies understand the law.

The Act imposes hefty penalties for violations, and in addition, allows private internet service providers (ISP’s) to sue businesses who use their facilities or servers to send spam that violates the Act and to recover statutory damages. As such, noncompliance can be costly, and before embarking upon an e-mail marketing campaign, businesses should take steps to ensure that any unsolicited e-mail to potential or existing customers is compliant with a number of very specific federal guidelines.

Among the Act’s the main requirements:

• Subject lines, e-mail headers, and domain names must be accurate and not misleading
• You must provide a way for recipients to opt-out or unsubscribe from your communications and clearly explain the process in your e-mails
• You must actually honor the requests to opt-out or unsubscribe within 10 business days
• You must include a valid postal address in your e-mail
• You must disclose if your message in an advertisement

Virginia, as well as many other states, also has a statutory framework governing commercial e-mail and spam. The CAN-SPAM Act generally preempts state anti-spam laws, but provides some exceptions to state law preemption and the exact scope of preemption has been the subject of litigation. Businesses that engage in direct e-mail marketing should review their marketing practices for legal compliance with the CAN-SPAM Act, as well as state law.

Sara Dajani is an Associate Attorney with the DC region business law firm of Berenzweig Leonard, LLP. Sara can be reached at sdajani@BerenzweigLaw.com.