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Dear Industry Stakeholder, Many companies use email marketing to communicate with prospective customers. While there are relatively low “open rates” and “response rates” on email marketing because of spam-blockers and consumers being overwhelmed with emails, there are some industries that continue to include email marketing as a diverse portion of its overall marketing strategy. Email marketing is also used in building brand awareness, regardless of whether a consumer responds or converts. Over the years, everyone from Congress to individual states and other regulators have jumped on regulating email marketing. It can be confusing. I am providing this summary on what you need to know about unsolicited email marketing. This information may not be applicable to all companies, but it is a nice summary to follow and help you stay out of trouble when you email market. Most claims are now coming from California private plaintiffs and lawyers who are skilled at receiving, collecting, and analyzing email marketing for California specific email claims and lawsuits. |
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A company may send e-mails to a consumer or business in the U.S. without a prior express opt-in as long as the sending company complies with the CAN-SPAM Act. The “CAN-SPAM Act” is the federal law that regulates unsolicited email marketing. I summarize the requirements below. California, South Dakota and Canada require specific opt-in or prior business dealings. However, per my explanation, California is preempted by the CAN-SPAM Act as long as the e-mail is not false or deceptive. We don’t typically see issues in South Dakota. However, if you are gathering email addresses from lead forms where if a consumer is filling out their contact information, it would be best if the consumer is asked to agree to the company’s privacy policy and to being contacted at the submitted e-mail address. Summary of CAN-SPAM is as follows (FTC Compliance Guide here)
Aside from California’s and South Dakota’s stricter laws, under CAN-SPAM, you may email market anyone or any company you want until they opt-out or request (in any manner) that you stop. You cannot use IP address tricks, deviations (meaning routing the email through multiple servers to hide or avoid spam blockers) or flooding a company or person with emails. Also, under California law, you should use an ACCURATE REPLY “FROM” and “TO” lines, so that the reply email goes to a real sender email address, and not a code or dead reply. This is very important. The most frequent claims and lawsuits we see now are from California consumers who sue, alleging that the “FROM” line from the sender is not a real company, person, goes to a non-existent email box, or is not a real address and instead contains a “code behind the FROM line.” |
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Aside from the above, as long as the e-mail communications sent to or from California are not false or deceptive, then the federal CAN-SPAM Act should preempt the state’s law that otherwise requires either an opt-in or doing business. That means if you comply with the CAN-SPAM Act, generally you are safer. California, as it so often seems in many areas, is the exception to the rule and you need to be very careful about accurate and working Reply/FROM/TO lines. Please do not confuse Text Message Marketing/SMS with email marketing. Text/SMS have stricter rules relating to obtaining express written consent from the recipient before sending the text, and other transmission rules. I hope this summary helps on email marketing. If you have questions, please call my direct line. Robby H. Birnbaum, Esq. Greenspoon Marder LLP Direct Telephone: (954) 343 6959
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