CAN-SPAM Act of 2003 Frequently Asked Questions

1. Is a requirement for ADV-like subject line labeling part of this law?

   No, there is no requirement for ADV-like subject line labeling.

2. How will the CAN-SPAM Act impact Business-to-Business marketers?

   The CAN-SPAM Act applies to B2B advertisements, just as it does to B2C. The impact will be that business recipients must be afforded the opportunity to remove themselves from marketing lists (opt out) just as consumers.

3. How do we notify recipients that an email is an advertisement?

   Marketers must make it clear that a commercial email is an “offer” to the recipient. The sender of the email may accomplish this by using the words “advertisement” or “solicitation” in the body copy of the email, but specific language is not required by the law. Phrases like “This is a great offer for you,” or “You might be very interested in this product” would also satisfy the law.

4. I’m confused about labeling requirements as there are notable exceptions for including physical address, especially as it relates to affirmative consent.

   If a marketer has obtained affirmative consent to send email, he/she is exempt from the requirements that would otherwise force the use of words like “advertisement” or “solicitation” (see answer above). But the marketer is NOT exempt from the requirements that he/she must provide a valid postal address, an honest subject line, unaltered header information and an internet-based removal mechanism (opt-out).

5. How do I verify that my service provider is following the law?

   Marketers should have written procedures and a contract with their service provider.

6. Does this law apply to ALL commercial email communications or just to those seeking new business (i.e., unsolicited)?

   It applies to all commercial email whose primary purpose is defined as trying to sell a product or service. Note that it does NOT apply to informational email such as account balances or bills.

7. Who must receive and process removal (unsubscribe) requests: email service providers or marketers?

   The sender, defined in part as the entity who’s product or service being offered, is responsible, not the email service provider who sent the email on behalf of the sender. The sender may contract out the processing of removal requests, but the sender is still responsible.

8. If a recipient removes him/her self (unsubscribes) from a marketing list via an email service provider, does that email address have to be removed from all campaigns handled by that email service provider?

   No, unless the entity represented in the “From:” line is the email service provider. A commercial email message must have an internet-based removal mechanism (opt-out) to remove the recipient from receiving any future commercial email from the sender. In addition, the DMA recommends that an email service provider who is listed in the “From:” line, but who may be sending the email on behalf of a marketer, should also honor the removal request.

9. Would satisfying the affirmative consent clause, satisfy the do not email list, i.e. if we have affirmative consent, then can we avoid the do not email list? Or would the do not email list, require a different level of consent?

   To be clear, there is no do-not-email registry at this time. Any plan the FTC might develop would hold that affirmative consent would trump do-not-email rules. This would be similar to an Established Business Relationship (EBR) exemption under the FTC-run national do-not-call list.

10. For remove requests (unsubscribes), can we maintain two remove (unsubscribe) links, one for the advertiser and one for the list, and the person has the option to be removed from one or both – does this practice meet the new law?

    The law allows the email offer to contain options for the recipient to remove themselves from future commercial email messages (opt-out). The only requirement is that one of the choices to be removed (opt-out) allows the recipient to be removed (opt-out) from receiving future commercial email from the sender.

11. Is there a standard definition of affirmative consent… i.e., is there some information we need to capture to show that we have the permission? For instance, time/date/ip…

    There is no specific requirement about what records are needed to demonstrate affirmative consent, but it is recommended that the marketer keep a record of how consent was obtained. The DMA recommends that marketers maintain data on the date, time, and on which URL the consent was granted.

12. With respect to list rental and third party offers, who is the sender?

    If a marketer simply rents a customer list from another marketer (marketer 2) and then sends an email offer to that list, the advertising marketer is the sender. Marketer 2, if only providing a list, is not a sender under the law because its product or service is not advertised or promoted in the message.

13. When a recipient requests to be removed from a list (opts out), who is the request (opting out) going to – the Advertiser or the List Owner?

    Any recipient’s request must be honored by the sender of the email offer. The law requires that the recipient who asked to be removed from the list (opted out) from receiving further commercial email messages in fact does not receive any future commercial email messages.

14. Who needs to be represented in the “From: line” – the Advertiser or the List Owner?

    An initiator of the email message must be indicated on the “From” line. If a list owner merely rented the list to an advertiser, it would not be an initiator and therefore must not be represented in the “From” line. However, if the list owner sent the messages to its customer list at the behest of the advertiser, the list owner would then be an initiator, and either the list owner or the advertiser must be represented in the “From” line.

15. How does the new law interface with the DMA’s guidelines?

    The DMA Guidelines for Ethical Business Practices may go further than some of the provisions of this law. The DMA Guidelines are intended to ensure not only compliance with all laws, but also ethical behavior by marketers.

16. What does The DMA recommend in terms of ethical behavior that may go above and beyond the legal requirements?

    The DMA requirements on no harvesting and no dictionary attacks go beyond the legal requirements set forth in the CAN-SPAM Act.

17. What does the law consider to be a physical postal address?

    The law does allow a Post Office Box or a mail drop address to satisfy the requirement of a physical postal address. However, the DMA Guidelines require that marketers provide a physical street address to the recipient of an email solicitation, which would exclude Post Office Boxes and mail drops.

18. The new law governs emails for which “the primary purpose” is a commercial solicitation. How is that defined?

    The statute does not define what constitutes “the primary purpose” of an email. However, The Federal Trade Commission (FTC) has been given the power by Congress to issue regulations on criteria to determine the primary purpose of emails. The DMA will provide that criteria to its members as soon as the FTC creates them.

19. There has been a great deal of talk about how advertising-supported newsletters might be affected by recent legislative proposals at the state level. How does this law impact advertising-supported newsletters?

    Federal law does not limit the ability of newsletter authors to use third-party advertising to support the delivery of their publications.