The final iteration of the CAN-SPAM Act regulations take effect this week, so this is as good a time as any to review the requirements of the law and to make sure the latest twists given by the Federal Trade Commission (FTC) are baked into your email, web, e-commerce and/or marketing operations.

The basics of the CAN-SPAM Act remain the same as they were under the interim regulations:

1. Do not have false or misleading header information or deceptive subject lines.  When you send email, the "from," "to," and email routing information must be truthful and accurately describe the entity who is initiating the email. The subject line must also accurately reflect the contents of the email.

2. Identify the message as an advertisement. Every commercial email must include clear and conspicuous notice that the email is an advertisement and that the recipient can opt-out of future messages.

3. Include a valid return email address or other Internet-based method for receiving and processing opt-out requests. You must give recipients a simple means of requesting to be removed from future mailings. This can be done via email, or through a link to a single web page. The mechanism must be functional for at least 30 days after the email is sent and requests must be processed within 10 business days.

4. Include clear identification of the sender's identity, including a valid postal address.

 
What's new under the new rules?

There are four main issues addressed, or clarified, under the final regulations issued a few weeks ago:

1. The opt-out mechanism must not require recipients to pay any fee, must not require recipients to provide any information other than their email address, and must not require any steps other than sending a reply email or visiting a single web page. In addition, the FTC made clear that if you utilize an opt-out web page, it cannot contain additional advertisements or exhortations not to unsubscribe. This may require some email marketers to change their current unsubscribe practices, particularly if they ask recipients to log in or to navigate through multiple pages to process the request.

2. In the case of emails sent on behalf of multiple advertisers, the FTC provides guidance on creating a "designated sender" in order to simply the notice, unsubscribe processing, and other compliance obligations. The designated sender will be the entity responsible for ensuring prompt opt-out processing, and ensuring that all of the advertisers receive copies of the opt-out (suppression) list for future mailings.

3. A post office box or private mailbox, if otherwise operated in accordance with postal service regulations, can be considered a valid postal address under the Act.

4. When the Act talks about a "person," that includes natural persons as well as corporations, associations, and non-profit entities.

Finally, if your site includes a "Refer-A-Friend," "Forward to a Friend," or other similar process, the FTC provided some lengthy guidance about how it will look at such emails in terms of compliance with the CAN-SPAM Act. For example, the FTC made clear that any site, product, or service that is advertised in a "refer-a-friend"-type message may be deemed the sender of that message if the person "induces" its transmission.

The FTC did not provide a definition of "induce," but they did indicate that a payment or other consideration wasn't a necessary  requirement of an inducement. The FTC's discussion on this point is very lengthy and I won't try to summarize it all here. But suffice to say that if you depend on "refer-a-friend"-type mechanisms, you will need to consult your legal counsel regarding changes you might need to make in order to ensure compliance.

While Habeas cannot provide you with legal advice, we certainly can assist you in reviewing your email reputation management and deliverability strategy and practices with various legal and industry best practices in mind. Our advisory services team is happy to help you fortify your online strategy and brands, and stay off email blacklists!