As federal and state regulators continue to crack down on telemarketing and text message marketing, companies are now turning back to email marketing to reduce Telephone Consumer Protection Act (“TCPA”) regulatory action and litigation risk. there is. With reliance on email marketing once again on the rise, now is a good time to take a refresher course on compliance with the Regulation of Unsolicited Pornography and Marketing 2003 (“CAN-SPAM”).
CAN-SPAM and state email marketing laws
CAN-SPAM, enacted in 2003, is a federal law that establishes specific requirements for email marketing. CAN-SPAM specifically prohibits the use of false or misleading header information in the “From”, “To”, and “Reply-To” lines of an email. Additionally, the originating domain name and email address must be accurate and must not falsely identify the person or company sending the targeted commercial email.
CAN-SPAM also prohibits the use of deceptive subject lines. The subject line should accurately reflect the content of the email body. Commercial messages must clearly and conspicuously identify the email as an advertisement (unless requested), provide the sender with a valid address, and provide a mechanism for consumers to opt-out of receiving future emails. must be provided. Opt-out requests must be received within 10 business days of receipt.
Unlike the TCPA, which requires consumers to opt-in by providing prior express written consent to be contacted, CAN-SPAM is an opt-out law. This means that businesses can send unsolicited emails to consumers until they receive a consumer's request to opt out. Additionally, CAN-SPAM does not apply to “transactional or relationship messages,” such as emails to customers regarding orders. Please note that, unlike the TCPA, CAN-SPAM does not provide an individual with a private right of action.
CAN-SPAM typically preempts state laws regulating email marketing. An exception to CAN-SPAM's pre-emption clause carves out state laws that prohibit false or deceptive email marketing. One prominent state law is the California law codified in Section 17529.5 of the California Business and Professions Code. This law states that “no person or entity may advertise in a commercial email advertisement originating from or to a California email address under any of the following circumstances: It is illegal to: (1) use a third party's domain name in an e-mail advertisement without the third party's permission; (2) contain altered, misrepresented, or forged header information in an e-mail advertisement. (3) The email advertisement is likely to mislead a recipient acting reasonably under the circumstances as to material facts about the content or subject matter of the message. Contains a recognized subject.”
Unlike CAN-SPAM, California law provides a private right of action against individuals who receive unsolicited commercial email. An individual may recover actual or statutory damages up to $1,000 per email. In addition, if you prevail in a Section 17529.5 action, you may be entitled to attorney's fees and costs.
email marketing method
Companies involved in email marketing must navigate CAN-SPAM and the various state laws that apply to commercial email delivery. As federal and state regulators continue to crack down on the telemarketing industry, email marketing is once again becoming the preferred advertising method to reach consumers.
Companies involved in email marketing are encouraged to retain experienced legal counsel to ensure compliance with CAN-SPAM and other applicable federal and state laws.
