Every business that operates in the United States and uses email and text marketing should have a fundamental understanding of what the CAN-SPAM Act (“CAN-SPAM”) is and how it might impact their business. CAN-SPAM is one of several laws in the United States governing how commercial messages (including emails and text messages) can be used. If violated, CAN-SPAM can carry some strict penalties, so it’s essential that you understand your obligations when using email or text messaging to communicate with your customers.
As a note, this article is for informational purposes only. It is not intended as legal advice or a comprehensive summary of the law. You are encouraged to retain your own legal counsel to review the contents of this article and assess your unique commercial messaging business scenario. In addition, a business can do many things, including use of the Podium system outside its intended use, which can give rise to liabilities beyond those addressed in this article.
What is the CAN-SPAM Act?
CAN-SPAM stands for Controlling the Assault of Non-Solicited Pornography And Marketing Act and was first passed into law in 2003. CAN-SPAM was created in response to the growing problem of spam emails, and established the USA’s first standards nationally for commercial email. (For reference, other countries have similar laws, such as Canada’s CASL or Australia’s AU Spam Act.)
The main requirements of CAN-SPAM include the following:
- There can be no misleading or false information in the header.
- The subject line must not be deceptive.
- The message must make it clear that this is an advertisement for goods or services.
- There must be a clear inclusion of a valid physical postal address for someone to send mail to.
- There must be a clear and functioning opt-out option and opt-out requests must be honored promptly.
Importantly, the law also requires that you pay attention to the actions others take on behalf of your company. Specifically, if you outsource your email marketing, the company you hire to handle that marketing must comply with CAN-SPAM. If they fail to comply with it, you may face legal consequences.
It is also worth mentioning that after someone opts out of your messages, you cannot transfer their email address to another mailing list or sell it.
CAN-SPAM for SMS Marketing
CAN-SPAM, along with other laws like the TCPA, also governs aspects of commercial text messaging. Similar to email campaigns, you should make it easy to identify that the message is an advertisement and make the opt-out process clear (and promptly honor any opt-outs). With text messages, you must also have prior express consent from each intended recipient.
6 Tips for Complying with CAN-SPAM
Whether you have a marketing campaign that is based on emails or text messages, you will want to take some key steps to ensure you’re complying with CAN-SPAM Act and other applicable laws Here are a few requirements and best practices to be aware of:
1. Have a Written Opt-In
Regardless of the type of commercial messages you send, you should have a clear opt-in process to make sure you’re sending messages to those that want to hear from you. You should have proof of valid opt-in from every intended recipient. Maintaining this record will make it much easier to show that you are compliant.
2. Include Clear Identification
Make sure it’s clear who your commercial message is coming from. Recipients should be able to quickly know exactly who sent it.
3. Clearly Identify Your Content
Be sure to label your content accurately as well. If you are emailing regarding a large lawn mower sale, clearly state just that in the subject line. There is no specific method called for here, as long as you use clear, concise language.
4. Avoid Shady Tactics to Build an Audience
Don’t use robotic means to generate addresses—this practice can leave you in violation of CAN-SPAM. Only send commercial messages to those you have a relationship with or who have actively requested emails.
5. Allow Recipients to Contact You Directly
Those receiving your commercial messages must be able to contact you through two different methods. One is to message you back, and the other is by going to your physical address. To be compliant, make sure your contact info is in the footer of every email.
6. Make Unsubscribing or Opting Out Clear and Easy
To satisfy CAN-SPAM, you must have a visible and easy-to-follow opt-out process. You must also honor all requests promptly. Most emails have an automatic feature for this. Records should be maintained, ensuring those who have opted out are not emailed again.
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How to Hande Opt-Outs
When you receive an opt-out, you’ll need to be prompt in removing people from your communication plans to ensure they no longer receive your commercial messages, including future campaigns. You should therefore establish an effective process to review opt-outs on a regular basis and act upon those quickly. In addition, it is important to keep an accurate list of emails and phone numbers that have submitted an opt-out request, so you do not make the mistake of sending to these customers again.
Allow for Opting Down
You can also consider allowing your customers the opportunity to opt down, rather than out, so they have more options to meet their needs. Many times, this approach is effective at keeping some of your subscribers. Instead of opting to no longer receive any commercial message from you, customers can opt for a less frequent rate or different types of messages. This can give customers more control over their experience, while allowing a business the chance to continue communicating with those customers according to their preferences.
As part of the unsubscribe process under CAN-SPAM, you cannot:
- Require customers to provide personal details other than email addresses (or phone numbers for an SMS marketing list).
- Charge fees.
- Make the process a complicated or multi-step ordeal. Recipients should not have to do more than just visit a single page of your website or reply to your email or text once to opt-out.
- Delay opt-out requests past 10 days to process, 30 days to cease.
FAQs
What is an opt-in?
While CAN-SPAM does not expressly require that you get a recipient’s consent before sending them commercial emails, as a best practice, you may still want to get opt-ins before sending commercial emails to make sure you’re communicating with people who want to hear from you. Additionally, under different laws, including the TCPA, prior express consent is required before sending marketing text messages, so you’ll want to ensure you’re capturing and recording valid consent before launching any text message campaign. Capturing valid consent or opt-ins can happen in various ways, including through a sign-up sheet at the door or a pop-up box on a website, just to name a few.
How should I handle opt-out requests?
Maintaining a clear and easy opt-out process (and promptly honoring any opt-outs) is a requirement under CAN-SPAM. An “opt-out” is the ability for a recipient to communicate that they no longer want to receive commercial (or other) messages from you. Because this is a requirement under the law, when composing your messages, it is important to make sure you do not alter these opt-out links or this part of the design in a way that would might run afoul of the law. Be careful that the ability to opt-out is (and remains) clear in your emails and texts so that you do not inadvertently violate part of CAN-SPAM.
What are commercial messages?
Under CAN-SPAM, a “commercial message” is defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” Given how broad this definition is, chances are that if your message includes any type of promotion, it’s likely commercial, meaning CAN-SPAM apples.
While CAN-SPAM does not apply to “transactional” messages (which includes content facilitating or confirming a commercial transaction that the recipient already has agreed to, such as warranty/recall notices or changes to terms or features,) if the message includes both transactional and commercial content, the primary purpose governs. So, you need to be thoughtful when creating and sending messages to your customers to make sure you’re following CAN-SPAM when it applies.
Podium: Your Text Marketing Secret Weapon
CAN-SPAM may seem intimidating, but if you understand and follow the basic requirements of the law, CAN-SPAM doesn’t need to present much of an obstacle for you and your business.
Before we finish up, let’s talk about the communication solution your small business needs—Podium. Podium makes it easy for small businesses to dive into the world of text marketing. With a 98% open rate, text is one of the most effective ways to reach your customers, strengthen relationships, and drive revenue.
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