E-mail:  Marketing Opportunity or Potential Liability?

You feel like you are missing the boat. You have your e-mail distribution list (a nicely targeted list, at that), and you have your message nicely tailored to your targets. All you need to do now is to click your mouse, and send your message to hundreds of targets (um, er, potential clients).   Do you know if you have complied with the CAN-SPAM Act?

What is the CAN-SPAM Act?  Since January 1, 2004, federal law has regulated commercial e-mail messages. A “commercial” e-mail message is any e-mail which has the “primary purpose” to “advertis[e] or promot[e]…a commercial product or service (including content on an Internet website operated for a commercial purpose).” There is an exception, however,  for “transactional or relationship” e-mail messages; those are not included in most of the CAN-SPAM Act’s restrictions.

Under the FTC’s “Primary Purpose Rule” e-mails are divided into commercial and non-commercial categories: A message is “commercial” message:

1. If it only advertises or promotes a product or service.
2. If a recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a product or service, or the “transactional or relationship” content does not appear at or near the beginning of the message.
3. If it contains both “commercial content and other content that is not “transactional or relationship” and if a recipient reasonably interpreting the subject line would likely conclude that message advertises or promotes a product or service, or a recipient reasonably interpreting the body of the message would likely conclude that its primary purpose is to advertise or promote a product or service.

A message is not commercial if it contains solely “transactional or relationship content”.

Okay, now you know that your message is probably a commercial message.  What do you have to do? All commercial e-mails must clearly and conspicuously

• Identify the message as an advertisement or solicitation.
• Notify recipient of opportunity to opt-out of receiving further messages.
• Provide a valid postal address for the sender’s business (not a P.O. Box).
• Contain a functioning return e-mail address, or other Internet-based mechanism that permits the recipient to submit an opt-out request for at least 30 days after message is transmitted. (The sender has 10 business days to process an opt-out request.)

So, think twice before you click.  Make sure that your commercial e-mails comply with the CAN-SPAM Act.