New CAN-SPAM Rules for 2008
By Megan Ouellet, Director of Marketing for Listrak
May 15, 2008
The Federal Trade Commission has recently approved revisions to the CAN-SPAM Act of 2003. These new rules take effect 45 days from the date of publication in the Federal Register, which will take place within the next several weeks. However, direct marketers should implement the changes in their email marketing procedures as soon as possible in order to ensure they remain compliant. If messages do not comply with these rules, the sender’s company may be fined or charged with a criminal and civil offense.
The CAN-SPAM Act of 2003 called for unsolicited email campaigns to have several items in place in order for the message not to be labeled as spam. Even though the rules are in place for senders of unsolicited emails, permission-based email marketers that only send to recipients who have requested to receive their emails should also follow these rules. Legitimate marketers must do everything they can to distinguish and differentiate their emails from spam, and these rules help set them apart. Also, many subscribers are using the “Report Spam” button as the means of unsubscribing from a list.
The CAN-SPAM Act of 2003 stated emails must contain:
- An opt-out feature that allows recipients to unsubscribe through an opt-out button or by replying to the message which is sent to a valid, monitored mailbox
- The physical address of the mailer
- A valid, non-deceptive subject line and header (routing) information
- A warning label if the email contains adult content
The new rules expand upon the unsubscribe and physical address regulations of 2003, and also put in place a new designated sender rule and definition. The new rules1 are:
- Liability may attach to any “person,” including non-natural persons.
This rule follows the same guidelines as the Telemarketing Sales Rule by defining the liable party as an individual or as any form of corporate or unincorporated group, partnership, or other business entity, including incorporated non-profit organizations, but excluding politically-based emails.
- Designated sender rule.
This new rule sets guidelines for email newsletters and other email communications that have multiple advertisers, contributors, or senders in order to simplify these emails. Under the new rules, contributors may designate a single sender of the message, who is referenced in the from line of the email, whose physical address appears in the email, and whose products or services are promoted in the email message. The sole sender assumes responsibility on behalf of all the contributors for complying with the CAN-SPAM regulations, including five specific rules:
If the sole sender does not comply with all of the CAN-SPAM regulations, ALL of the contributors will be held accountable. Each individual advertiser will be considered the sender of the message, and each will be liable for non-compliance.
- Cannot contain false or misleading transmission information
- Cannot contain a deceptive subject heading
- Must include a clearly-stated, functioning return email address, or other Internet-based opt-out mechanism, that recipients may use to unsubscribe from future messages sent by the sole sender (as defined in the from line)
- Must be clearly identified as an advertisement or solicitation, contain a clear and conspicuous notice of the ability to opt-out, and include a valid physical address of the sole sender
- Must comply with the sexually explicit labeling rule, if applicable
- Valid postal address satisfied by accurately-registered P.O. or private mailbox.
Under the CAN-SPAM Act of 2003, a physical street address had to be included in the email message. However, the new rule states that a valid post office box or a private mailbox may be used, as long as it is registered with the United States Post Office, or with a commercial mail receiving agency that follows all USPS regulations. If the post office box or private mailbox was not accurately registered, or if the registrant fails to comply with applicable requirements, the address will be deemed “invalid” and the sender will be liable for non-compliance.
- Cannot complicate the opt-out mechanism.
The final new rule ensures that senders provide an easy, straightforward way for recipients to unsubscribe from unwanted email communications. Senders still have 10 days to complete the opt-out process. The new rule states that the opt-out mechanism:
- Must be available through a single web page, by replying to the message, or through an unsubscribe button feature on the email that allows recipients to unsubscribe through a single click
- Must only require unsubscribers to enter their email address and associated opt-out preferences – cannot ask unsubscribers to log in to access their accounts first
- Cannot include a fee or persuasive text on the unsubscribe landing page
If you have questions regarding these new rules, or if you need help implementing changes in order to remain compliant, please contact one of Listrak’s email marketing experts today.
1 Source: Email Sender & Provider Coalition