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E-mail Advertising: CAN-SPAM Compliance

Michael G. Barone
Aug 07, 2014

Question: I am aware of the “do not call" list, but is there a similar type of “do not email” list?  Also, what regulations do we need to be aware of if we choose to solicit business via e-mail? Answer: There is no e-mail equivalent to the federal “do not call” list, yet there are federal rules set forth in the CAN-SPAM Act that must be adhered to when a commercial message or advertisement is transmitted via e-mail. [“CAN-SPAM” is a nickname for Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (15 USC Chapter 103).] The CAN-SPAM Act covers all commercial messages defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service” [See Section 3(2) of the Act] Unlike many other advertisement regulations, the CAN-SPAM Act does not contain an exception for business to business e-mails.  Below is a summary of the important CAN-SPAM requirements: ►Opt-Out/Unsubscribe Requirement [Section 5(a)(5)]: The e-mail must contain a clear and conspicuous explanation detailing a mechanism for the recipient to opt out of all future e-mails. All opt-out requests must be honored within 10 business days. The only information recipients can be asked to provide, in order to opt out of future e-mails, is their e-mail addresses.  ►No ghost e-mails permitted: A valid physical address of the sender of the message and/or the advertiser must be set forth in the email [Section 5(a)(5)]. ►Be transparent [Section 5]: (a) The e-mail must clearly and conspicuously indicate it is an advertisement; (b) the subject line must relate to the body of the e-mail and not be deceptive; and, (c) the “from” header must be accurate and identify the sender on the e-mail. In addition to some violations of the CAN-SPAM Act being deemed criminal offenses, each separate e-mail in violation of the Act subjects the sender of the e-mail to statutory and actual damages as well as attorney’s fees. In sum, you need to make sure that all e-mail solicitations comply with the CAN-SPAM Act, because an e-mail blast which fails to comply with the CAM-SPAM Act could result in substantial economic damage to a mortgage lender. Michael G. Barone is director of legal and regulatory compliance at Lenders Compliance Group. He may be reached by e-mail at mbarone@lenderscompliancegroup.com.
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