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February 2004
What You Need to Know about
the New Anti-Spam Law
Much has been made of the CAN-SPAM Act of 2003 and what impact it might have on how commercial
banks and other financial services providers communicate with their business clients. Violations can incur fines up to $11,000 per incident.
Rest easy, folks. It’s not as bad as you think. What the new law requires is not much more than
any reputable sender of e-mail has already been doing.
The CAN-SPAM Act isn’t about requiring e-mail senders to jump through hoops, explains Michael
Goodman, Staff Attorney with the Federal Trade Commission’s Bureau of Consumer Protection. “Instead, it’s about providing the recipient with the information he or she needs to effectively respond to an e-mail
message.”
In recent weeks, Financial Publishing Services has participated in a teleconference on the
CAN-SPAM Act arranged by Ann Holland, president of Marketing Sherpa. That teleconference featured the FTC’s Mr. Goodman and several other industry experts. We’ve also reviewed the Act itself. According to the
Act, it applies to “any electronic mail message, the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” My reading is that this wording is sufficiently
broad that it could be interpreted to apply to virtually any kind of marketing communication.
My advice is to assume the Act applies to your e-newsletter or other e-communications and abide
by the rules of the new law. You may want to have your corporate attorney review the nuances of the new law. However, practically speaking, there are seven specific issues you need to address to avoid violations:
- No deceptive subject lines.
The subject line of your e-mail must accurately reflect the substance of your e-communication. This should not be a problem for B2B commercial marketers. If your e-newsletter subject line says “a monthly report from ABC Bank,” you should be well within the law, as would a subject line that highlights one of the topics featured in your newsletter.
- “From” line must include the sender’s name.
This should not be a problem so long as you include the sender’s name somewhere in the “from” line. The sender listed could be your bank or non-bank financial services provider, or it could be the name of the bank calling officer or sales representative. Again, as Mr. Goodman noted, the intent is to make it easier for recipients to be able to identify the sender before opening and viewing the e-mail’s content.
- E-mail must include an opportunity for the reader to opt out. Your e-mail
communication needs to include somewhere within it the opportunity for the recipient to opt out from receiving further e-newsletter editions. However, if you are communicating with the same recipient about
multiple issues—multiple e-newsletters or other communications besides your e-newsletter—then you ought to offer a variety of unsubscribe options. That way the reader can unsubscribe to one communication
without prohibiting you from sending other e-communications that he or she may want to continue receiving. However, if you offer multiple unsubscribe options, the new law requires that you include one option
that allows the recipient to unsubscribe to all communications from your organization.
- You should maintain up-to-date suppression files.
The new law requires that you honor opt-out requests within 10 days of receipt. To avoid problems, we suggest that you maintain updated centralized suppression (unsubscribe) files and that you apply them to all future e-mails. If you use an e-mail service provider, this most likely will not be a problem. Most providers will match your mailing list against the suppression list and not send e-mails to any addresses that have opted out.
- E-mail must include the name and street address of the sender.
This is the one provision of the new law that has not been standard practice among e-newsletter senders until now. Complying with the requirement can be as simple as including your company name, street address, city, state and ZIP code. We suggest you include with the address an invitation for the reader to contact you by writing to that address or by e-mail contact. Along with the invitation we suggest including a link that enables the reader to instantly send you an e-mail response.
When banks use a service provider to produce their e-newsletters, the name and address listed should be that of the bank sending the e-newsletter and not the vendor providing the service.
- Advertising messages must be labeled as such.
This is an issue when a financial services provider sends out an e-newsletter that also includes an ad. Such situations will be judged on a case-by-case basis, government and industry experts say. Suffice it to say that the more consultative your e-newsletter is, the less chance you will need to slap an advertising label in your e-mail notice. However, if you roll out a new product or service and use e-mail to announce it, you definitely will need to label your notice as an advertisement, unless you have obtained affirmative consent, as noted below.
- Affirmative consent.
If your institution received permission from recipients before sending your e-newsletter, you have obtained affirmative consent. And, if you have received affirmative consent, you don’t have to worry about whether your e-mail content is advertising in nature and if so, requiring the advertising label. Importantly, even if your e-mail is advertising in nature, you don’t have to label it as such, so long as you obtained affirmative consent prior to broadcast. In addition, while the Act does not define what kinds of records you need to maintain to prove you have obtained affirmative consent, it is a best practice to maintain some kind of record.
Note, however, even if you have obtained affirmative consent, you still must provide an opt-out option and a physical address in your e-mail message.
While there are a number of other subtle issues associated with the CAN-SPAM Act of 2003, these
issues are the ones that most directly impact how banks and other financial services providers continue to use e-mail to communicate with their clients and prospects.
The important thing to keep in mind is that the requirements of the new law are not onerous.
They just codify practices that are good common sense for communicating with clients and prospects.
If you would like to learn more about the CAN-SPAM Act, contact the FTC’s Mr. Goodman at [email protected]. To report e-mails violating the new Act, Mr. Goodman suggests forwarding them to [email protected].
FPS regularly works with financial services companies to maximize the impact of e-mail and
online communications. If you would like to discuss the CAN-SPAM Act or any other strategic marketing communications issue with FPS President Vince DiPaolo, please contact him at 847-501-4120 or [email protected].
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