CAN-SPAM act: are your emails breaking the law?

Posted In: Email list, Email Marketing

spam email

By Janice Hostager

Could your emails be spam?

Bulk email is one of the most powerful ways to reach your target customer and build a relationship. But not it it’s considered to be spam.

Every few weeks I get spam email from a woman who I met a couple of years ago at a networking event. We’ll call her Nancy. Nancy and I exchanged business cards. And ever since that time, she’s been emailing me with her weekly promotional specials using her Gmail account.

The problem with that (besides the fact I didn’t ask to be on her email list) is there is no place for me to unsubscribe. So every week I move her email into my junk folder (where fortunately most of them migrate to on their own anyway.)

What Nancy likely doesn’t know is that she’s breaking the law. And the penalty, if she gets caught, is steep.

Nobody likes spam. So it’s vitally important to make sure you’re following the law when you send out emails. Not only can you get a big fine for not abiding by these laws, but you’re likely not going to win much business by violating them either.

In 2003, Congress passed a law called Controlling the Assault of Non-Solicited Pornography and Marketing Act (15 U.S.C. § 7701-13)–the CAN-SPAM act. It sets out specific requirements for the content of email messages to ensure that people can opt out of receiving them.  And violating these laws can cost you big–up to $16,000.

Three types of emails

The first thing you should know is that the law makes a distinction between types of email based on the “primary purpose” of the message. They divide this down into three types of content: Commercial, Transactional/Relationship or Other.

1. Commercial content: it promotes a commercial product or service, including content on a commercial website (such as a blog post). This is the content most regulated by the law. If the message only contains commercial content, if must comply with all the requirements of the CAN-SPAM act.

2. Transactional or relationship content: this content is regarding an existing transaction or is information about an existing job in progress. This includes warranty, recall, safety, or security information, a change in terms or features, or account balance information, delivery information about an existing transaction. If the message is Transactional/Relationship-based, if must not contain false or misleading routing information, but other than that, it’s exempt from most of the CAN-SPAM law.

3. Other content: contains neither of these two types of information. And if it’s “other” content, it’s likely exempt (but check to make sure).

The CAN-SPAM Act checklist

So how do you know you’re safe? Here’s a checklist (and an infographic)

  • Have accurate header information. Your “From,” “To,” “Reply-To,” and routing information must identify the business or individual who is sending the message. No hiding behind a false name.
  • Use clear subject lines. The subject line must reflect what’s contained in the content of the email
  • Let the recipient aware that you’re sending a promotion, if that’s what it is. Make sure it’s clear in the content of the email message that you are promoting a product, service or a company.
  • Show your physical address. This can also be a registered post office box or a street address. Only listing an email address or a website is not enough.
  • Show how they can opt out of future emails from you. If you use a valid email service (such as Mailchimp or Aweber) this is added automatically to the bottom of your emails automatically. The unsubscribe link (or email address) must be easy for an ordinary person to read and understand.
  • Honor an unsubscribe within 10 days. If you have emails set up ready to send, make sure they reflect your current email list–not the one you had when you set the email up. Also, once they’ve unsubscribed, you can’t sell or transfer your email address in the form of a mailing list (if you’re in the habit of doing that–I never do).
  • Pay attention to what people are doing on your behalf. If you have another company taking care of your marketing, compliance is still your legal responsibility (i.e., you can both get a hefty fine).
  • If your email needs to contain any sexually oriented material, make sure it’s readily identified in the subject line. When the email is “initially viewed” the message should only contain instructions on how to access that sexually oriented material–never the material itself.
  • Place a notice on your site that lets people know that you don’t “give, sell, or otherwise transfer” email  addresses to “any other party for the purpose of initiating, or enabling others to initiate,” messages. This is more for your protection to prevent an address on your website from being harvested.
  • Provide a double opt-in. Most email marketing providers have written into their terms and conditions that you must acquire the email recipient’s permission in order to use their service. It’s required to stay on their white-listing agreements with the major Internet Service Providers.  Although this is not part of the CAN-SPAM law in the United States, several other countries DO require that as part of their anti-spam laws (including Canada and Europe). And if you have a website that’s accessed internationally, and you’re required to abide by their laws as well. 

If you find that you have been violating the CAN-SPAM act (like our emailer Nancy), I would recommend getting an email service, such as MailChimp or ConvertKit. Besides guiding you on what’s acceptable to send, they will help you get into more inboxes and fewer junk folders. MailChimp even offers a free account.

And for your reference when putting your emails together, here’s a great infographic from our friends at Every Cloud 


Resources: 1, 2, 3, 4

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