Living with anti-spam rules: don't expect to succeed at e-mail marketing until you first understand the requirements of the federal CAN-SPAM Act.

• Author: Becker, Kristine M.
• Position: Fundamentals: Telephone and E-Mail Compliance

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In previous articles, we've covered compliance issues relating to marketing by telephone or fax. Now it's time to discuss e-mail marketing--showing how it is impacted by the federal CAN-SPAM Act., which became effective on Jan. 1, 2004. The act states that it is unlawful to send a "commercial electronic mail message" to anyone unless that message meets four requirements.

A commercial electronic mail message is any electronic message "the primary purpose of which is the commercial advertisement or promotion of a commercial product or service." In other words, if an e-mail message advertises or promotes a commercial product or service, the act applies and the e-mail must comply with the four requirements discussed below.

Four requirements for commercial e-mail messages

If the primary purpose of an e-mail message is commercial, the message must contain the following four items:

1. A valid physical postal address of the sender.

2. A clear and conspicuous identification that the message is an advertisement or solicitation.

3. A clear and conspicuous notice of the opportunity to opt-out.

4. A functioning opt-out mechanism (i.e., return e-mail address or other Internet-based mechanism).

Honoring opt-out requests

Because commercial e-mail messages must contain opt-out mechanisms, companies should expect to receive requests not to receive future e-mails from recipients and must have procedures in place for handling such requests. After a recipient makes an opt-out request, a sender has the choice of providing the recipient with a list or menu from which to choose specific types of commercial electronic mail messages to receive or not receive from the sender. However, the list or menu must include an option for the recipient to elect not to receive any e-mail message from the sender.

If a recipient makes an opt-out request, the sender of the e-mail message is required to honor that request within 10 business days. Companies should note, however, that the Federal Trade Commission (FTC) is currently considering whether the time period for honoring opt-out requests should be reduced to three days.

Affirmative consent

Although obtaining a recipient's affirmative consent will exempt companies from most of the do-not-call and do-not-fax requirements, companies do not receive much of a benefit by obtaining a recipient's consent under the CAN-SPAM Act. Even if a company obtains consent, it is still required to provide its postal address...