Is Your Marketing Newsletter In Compliance With Federal Law? FTC Regulates Commercial Newsletters: Fines If You Don't Comply with CAN-SPAM Act

Have you heard of the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act?

If you’re sending out newsletters via email for marketing purposes, then you may want to insure that you (or your firm) are in compliance with this federal law designed to curtail unwelcome spam messages. 

Together with the Telephone Consumer Protection Act (TCPA), the CAN-SPAM Act works to protect all of us from unwelcome and uninvited messages in our email inboxes or in text messages on our cell phone. 

They’ve been on the books since 2003 and they’re enforced by the Federal Trade Commission (FTC). These federal laws regulate ALL commercial messages sent via email or text message; therefore, any marketing campaign that includes email newsletters or text campaigns must be in compliance with these federal laws.

1. Is your communication a “commercial electronic mail message” as defined by the Act? 

From the CAN-SPAM Act: 

  • The term "commercial electronic mail message" means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose). 
  • The inclusion of a reference to a commercial entity or a link to the website of a commercial entity in an electronic mail message does not, by itself, cause such message to be treated as a commercial electronic mail message for purposes of this chapter if the contents or circumstances of the message indicate a primary purpose other than commercial advertisement or promotion of a commercial product or service. 
  • Except as provided in subparagraph (B), the term “sender”, when used with respect to a commercial electronic mail message, means a person who initiates such a message and whose product, service, or Internet web site is advertised or promoted by the message. 
  • (B) Separate lines of business or divisions: [i]f an entity operates through separate lines of business or divisions and holds itself out to the recipient throughout the message as that particular line of business or division rather than as the entity of which such line of business or division is a part, then the line of business or the division shall be treated as the sender of such message for purposes of this chapter. 

In essence, the federal law requires the reader of your newsletter or series of emails to consent to these messages being sent to their inbox if the messages meet the definition of “commercial electronic mail message.”

2. Need for Consent from the Recipient for Commercial Email Messages 

The FTC has rules in place that require written consent for text messages to a phone; for email inboxes, the consent can be oral or written (say, in an email message subscribing to the messages or newsletter) if the message meets the definition of “commercial electronic mail message.”

 Your Newsletter Needs to Meet Requirements under Federal Law 

 The Small Business Administration (SBA) recognizes the power of email marketing on its website; it quotes Pingdom research for a Return on Investment of $44.25 for every $1.00 spent on email marketing in 2011. 

ROI of $44 to $1 means that newsletters work: therefore, the goal is not to back away from email marketing but instead to make sure that the newsletter comports with federal guidelines.

To that end, the SBA provides details and suggestions on how to take advantage of the benefits of this marketing tool without falling afoul of the federal laws and regulations.

Read more from the SBA here.

And remember: the FTC does enforce this and does fine companies it determines to be in violation of these laws. Here’s a helpful video from the FTC on this issue: