Stay on the right side of CAN-SPAM

CAN-SPAM rules

THE DIGEST: How to Stay on the Right Side of CAN-SPAM

Top 3 takeaways:

  1. NEVER hide a marketing/sales message in an email to someone who hasn’t agreed to be on your marketing list. You can be fined if reported/caught.

  2. Agreeing to get emails related to a purchase (“transactional email”) isn’t the same as agreeing to get marketing emails. Be sure you have specific approval to send someone marketing email. You can be fined if reported/caught.

  3. You can be clever in your subject line, but don’t be deceptive. You can be fined if reported/caught.


Most companies use email as the primary method of communication related to purchases and similar transactions.

For that reason, it’s really important that you differentiate between two types of emails, and the people who’ve given you permission to send them. These were defined by the CAN-SPAM Act (a.k.a., Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003).

  • Transactional (those related to a specific sale, purchase, event registration, membership or subscription arrangement).

  • Non-transactional (pretty much every other kind of message).

Also note that these rules apply to any emails you send — whether from

  • your regular business emails (Gmail, Outlook, Yahoo, etc),

  • your Customer Relationship Platform (Dubsado, Zoho, Hubspot, Salesforce, etc),

  • or bulk email marketing platforms (Mailchimp, Constant Contact, Mailerlite, etc).

The main requirements of the CAN-SPAM Act include:

  • using an accurate “from” email

  • including a street address

  • not being deceptive in your email subject line

  • making it easy to opt-out of receiving more emails

  • ensuring it’s clear you’re sending an ad

  • promptly remove people who’ve opted out

  • you’re responsible even if someone else handles your email.

This post from the Federal Trade Commission is an excellent resource for details, complete with FAQs.

Let’s look more closely at that Opt-Out requirement

This is one that relates to pretty much everyone, but is often ignored, if only inadvertently.

If the message you’re sending does NOT relate to an active transaction, you need to give the recipient a way to opt-out of further emails — even if the email is coming from you or one of your sales team, and not your bulk email-marketing platform.

So let’s say you’re checking in on a past customer and add that you have a new service or product line they might be interested in. This would be considered a marketing email and must follow all the CAN-SPAM rules—including the ability to opt-out!

Why? You’re just emailing a customer, after all, sustaining the relationship.

Well, think about it. If you got an email like that from a vendor or retailer you’d purchased from, even if you’re a fan of theirs, would you say “oh, this is informing me about that thing I bought” or “oh, they have something new to sell me.”

Exactly. It’s still marketing, according to the law. You may be very happy to get this email, but it does not advise you in any way about the status or details of the purchase you made.

What about “content marketing”?

  • What if you’re not selling in your email, but rather just sharing tips and news? Still marketing.

  • What if they’re a member or subscriber to a club or program you offer? Unless it relates to the terms of the membership or subscription, it’s marketing.

From the FTC’s article:

“While you don’t need to get members’ consent to send them marketing emails, subscribers and members don’t lose their ability to opt out of marketing emails from you simply because they have a subscription or membership.”

Need more reasons to follow CAN-SPAM rules?

  1. Improve deliverability of your emails. Emailing people who don’t want your emails, and so don’t open them, lowers your “email sender quality score” and increases the odds of ALL your emails being flagged as spam, or even getting you blacklisted. (Also a good reason to “clean” your list every 6 months or so, removing those who never open from your marketing email list.)

  2. Avoid fines! Government bodies are cracking down on this distinction more than ever—and fines can be up to $50K!

For the full scoop on CAN-SPAM, including the 5 parameters for defining a transactional or relationship email, review the article above (and make sure anyone you hire reads and understands the rules too—fines apply both to whoever prepares an email, as well as the company whose name is in the sent-from address.

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BASICS: What you need to know about EMAIL MARKETING