As federal and state regulators continue to crack down on telemarketing and text message marketing, businesses are now transitioning back to email marketing to reduce Telephone Consumer Protection Act ("TCPA") regulatory action and litigation risk. With this renewed reliance on email marketing, now is a good time for a refresher course on compliance with the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM").
CAN-SPAM and State Email Marketing Laws
Enacted in 2003, CAN-SPAM is a federal law that sets forth specific requirements for email marketing. Among other things, CAN-SPAM prohibits the use of false or misleading header information in email "From," "To," and "Reply-To" lines. In addition, the originating domain name and email address must be accurate and not misidentify the person or business that sent the subject commercial email.
CAN-SPAM also prohibits the use of deceptive subject lines. The subject line should accurately reflect what the body of the email contains. The commercial message must clearly and conspicuously identify the email as an advertisement (unless solicited), provide a valid physical postal address for the sender, and provide consumers with a mechanism for opting out from receipt of future email. Opt-out requests must be honored within 10 business days of receipt.
Unlike the TCPA, which requires that a consumer opt-in by providing prior express written consent to be contacted, CAN-SPAM is an opt-out law, meaning that businesses may send consumers unsolicited email until the business receives consumer opt-out requests. Moreover, CAN-SPAM does not apply to "transactional or relationship messages," such as email to customers about their orders. Please note that, unlike the TCPA, there is no individual private right of action under CAN-SPAM.
CAN-SPAM generally preempts state laws that regulate email marketing. The exception to CAN-SPAM's preemption provision is a carve out for state laws which prohibit false or deceptive email marketing. One prominent state law is that of California, codified at Section 17529.5 of the California Business and Professions Code. This law makes it "unlawful for any person or entity to advertise in a commercial email advertisement either sent from California or sent to a California email address under any of the following circumstances: (1) The e-mail advertisement contains or is accompanied by a third-party's domain name without the permission of the third party; (2) The email advertisement contains or is accompanied by falsified, misrepresented, or forged header information; (3) The e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message."
Unlike CAN-SPAM, California State law permits a private right of action for individuals who receive unsolicited commercial email. Individuals may recover either actual damages or statutory damages of up to $1,000 per email, plus attorneys' fees and costs if they prevail in a Section 17529.5 proceeding.
Email Marketing Laws
Businesses engaged in email marketing must navigate CAN-SPAM and the assorted individual state laws that apply to the delivery of commercial email. As federal and state regulators continue to crack down on the telemarketing industry, email marketing is once again becoming the preferred advertising vehicle to reach consumers.
Businesses engaged in email marketing are advised to hire experienced counsel to ensure that they comply with CAN-SPAM and other applicable federal and state laws.
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