The legal basics of email marketing in the US

In the US, the primary law you want to familiarize yourself with if you’re doing email marketing is the CAN SPAM Act of 2003.

Each and every separate email in violation of the CAN-SPAM Act is subject to penalties of up to $40,654.

For the most part, the law is in line with common sense and helps your relationship with your customers in the long-run. But here’s a breakdown of the main components.

Physical address

“Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.”

In order to send any mass email or email with an intent to market to customers, you must link your physical address to it. This is a big one people try to overlook or circumvent but if you see emails from legitimate businesses and scroll down to the bottom, you’ll notice that in the footer they all include their location.

An opt-out link

“Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you.”

The other big one that people overlook or try to ignore – your email must include a way to unsubscribe to all of your emails. And not just opt-down or unsubscribe from a single segment, which many companies try to do instead of giving the option to unsubscribe from all.

We’ve all been there as frustrated consumers. But did you know that it’s also just blatantly illegal to ignore opt-out requests?

Honor opt-outs in a timely manner

And on that note –

“Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request.

Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.”

Ever unsubscribe and still get the email for several days afterwards? Sometimes, it’s understandable – if you’re a business with hundreds of thousands of email addresses using a program like Bronto or Listrak, it can truly take several days for your unsubscribe to sync up with the many lists and campaigns that are running.

However, the law clearly states set days by which you must be unsubscribed from the lists.

A few other points worth noting

  • Don’t falsify the sender info – Your “From,” “To,” and “Reply-To” must be accurate
  • Keep your subject-line in line with the content – It must reflect the content of the email, which is something you want to do with email marketing in the first place
  • Don’t buy email lists – It’s legal but iffy. There are no shortcuts to any place worth going in life but this also applies to marketing.
  • Follow international rules if your marketing goes beyond the US – Other countries have stronger, more specific laws than the US does. Canada, for example, has CASL and their legislation has many more requirements than CAN SPAM.
  • Send an opt-in email or use double opt-in for offline subscribers – Technically speaking, you can send emails without opt-in as long as they are transactional (part of the buying/shipping process) or if you mark them as advertising. But you legally want to get proof of permission for someone to be on your list. If you added them from a sign-up piece of paper in your store, for example, you need to send a confirmation opt-in email.
  • Don’t assume you’re in the clear if you’re hiring an agency – Verify that the agency is following CAN-SPAM regulations as well. If they’re legit, they will already know these rules but it’s worth it to double check. Even if someone is sending emails on your behalf, you are still liable for any transgression they might make.

If you’re unsure, MailChimp has a beautiful overview of what’s kosher and what’s not in the US.

Please note, this article is provided as a resource but it doesn’t constitute legal advice. I’m not an attorney and we do not have any attorneys on staff. If you do have specific questions, contact an attorney in your area who’s familiar with digital marketing.

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