Federal Rules on Email Advertising

Scope

The restrictions apply to a “commercial electronic mail message.” This is an email message whose primary purpose is the commercial advertisement or promotion of a commercial product or service. [15 USC 7702(a)(2)]

The term does not include a “transactional or relationship” message, however, which is a message having to do with a particular commercial transaction (for example, “Your balance still owing is $xx.xx”) or the commercial relationship between two parties, such as warranty coverage, product safety, etc. [15 USC 7702(a)(2)(B) and 7702(a)(17)]

The Federal Trade Commission (FTC) has issued detailed regulations on when an email’s “primary purpose” is commercial. [16 CFR 316.1 et seq.] You should check these regulations for guidance if your email is, for example, made up of commercial advertisements as well as a transactional or relationship message or if there’s any doubt about the commercial nature of the email.

Requirements and restrictions

CAN-SPAM has five basic rules:

First, CAN-SPAM Act prohibits sending a commercial email message with false or misleading “header information.” [15 USC 7704(a)(1)] (Incidentally, this restriction, and this one alone, also applies to transactional and relationship messages.) Header information is the information in the head of the email; i.e., the source, destination, and routing information. [15 USC 7702(a)(8)]

Second, CAN-SPAM prohibits sending a commercial email message with a misleading subject heading. [15 USC 7704(a)(2)]

Third, commercial email messages must contain an email address that the recipient can use to request that he or she not receive any more emails from that sender. [15 USC

7704(a)(3)]

Fourth, if a recipient uses the “stop future emails” email address to request a stop on future emails, the sender of the commercial email must abide by that request (following a 10-day grace period) and cannot give the recipient’s email address to anyone else. [15 USC 7704(a)(4)]

Fifth, a commercial email message must contain clear and conspicuous (1) notice that it is an advertisement or solicitation, (2) notice that the recipient may decline to receive such emails in the future, and (3) a physical postal address of the sender. [15 USC 7704(a)(5)]

Enhanced penalties

CAN-SPAM imposes penalties for violating these rules, of course, but it imposes greater penalties if one of these rules is violated in the context of any of the following:

“Harvesting” email addresses. This means collecting email addresses using an automated means from an Internet website or online service that contains a notice stating that the operator will not give, sell, or otherwise transfer addresses to any other party for the purposes of initiating electronic mail messages. [15 USC 7704(b)(1)(a)(i)]

“Dictionary attacks.” This means creating email addresses using an automated means that generates possible addresses by combining names, letters, or numbers into numerous permutations. [15 USC 7704(b)(1)(a)(ii)]

“Script sending.” This is using scripts or other automated means to register for multiple email accounts from which to send emails violating the CAN-SPAM restrictions. [15 USC 7704(b)(2)]

“Relaying or retransmitting.” This involves relaying or retransmitting an email that violates the CAN-SPAM restrictions from a computer that has been accessed without authorization. [15 USC 7704(b)(3)]