New Rules For Commercial
E-mailing
This Law Review was written by
Kimberly A. Pendo, Esq., and
edited by Jed Mandel. Both practice in the Association Law Group
at Neal, Gerber and Eisenberg
LLP, and serve as the Association
Forum’s legal counsel.
Q: I heard that there are new CAN-SPAM
Act rules that my association has to follow
when sending e-mails. What are the new
requirements?
A: On May 12, 2008, the Federal Trade
Commission issued four additional rules
implementing certain aspects of the Controlling the Assault of Non-Solicited
Pornography and Marketing Act of 2003
(the “CAN-SPAM Act” or “Act”). As we are
all aware, the CAN-SPAM Act, which took
effect on January 1, 2004, imposed a series
of requirements on the use of “
commercial e-mail messages” (e.g., messages
whose primary purpose is “the commercial advertisement or promotion of a commercial product or service). As a refresher,
the Act requires that all commercial e-mail messages include:
(i) identification of e-mail as an advertisement or solicitation (with limited exception);
(ii) notice of opportunity to decline to
receive future messages and a return e-mail address or comparable mechanism
allowing recipients to opt-out; and
(iii) the sender’s physical address.
The Act also makes it a federal crime to:
(i) falsify transmission information;
(ii) use deceptive subject headings; and
(iii) continue to transmit commercial e-mail to a person who has opted-out of
receiving such e-mail.
The new rules provide additional direction on how to comply with the Act. Specifically, the new rules address the following
four topics: (i) the types of entities and
people the law applies to; (ii) the definition
of “valid physical postal address;” (iii)
appropriate opt-out provisions; and (iv) the
definition of “sender” with respect to e-mail sent on behalf of multiple parties.
While the Act repeatedly uses the term
“person” in describing to whom the Act
applies, it failed to provide a definition of
such term. The new rules provide a definition of “person,” making it clear that the
Act applies to any “individual, group,
unincorporated association, limited or
general partnership, corporation, or other
business entity.” In adopting this definition, the FTC specifically rejected the
argument raised by several organizations
that unincorporated nonprofit associations should be excluded from the definition of “person” and therefore exempt
from the requirements of the CAN-SPAM
Act. When not-for-profit organizations
send e-mails — the primary purpose of
which is the advertisement or promotion
of a commercial product or service (such
as the sale of publications or membership
in the organization) — the recipients are
entitled to the Act’s protections and the
not-for-profit must comply with all
aspects of the Act.
The Act requires all commercial e-mail
messages to include the sender’s “valid
physical postal address,” and the new
rules clarify that “valid physical postal
address” includes accurately registered
post office boxes and private mailboxes,
in addition to street addresses.
The third rule issued by the FTC
addresses the Act’s opt-out requirements.
According to the Act, senders must provide e-mail recipients the opportunity to
“opt-out” of receiving future commercial
e-mail from the sender. The new rules
specify that an e-mail recipient cannot be
required to pay a fee, provide information
other than his or her e-mail address and
opt-out preferences, or take any steps
other than sending a reply e-mail message or visiting a single Internet Web page
to opt out of receiving future e-mail from
a sender. Apparently, some advertisers
have been using the opt-out procedure as
a way to collect information about e-mail
recipients or even subject them to additional advertising.
In the final rule, the FTC modified the
definition of “sender” in order to make it
easier to determine which of multiple parties advertising in a single e-mail message
is responsible for complying with the Act’s
opt-out requirements. Associations participating in a joint marketing campaign with
their related foundations, subsidiaries or
other organizations may now designate
one organization as the “sender” of the
commercial e-mail for purposes of the
Act. This new rule will allow the participants to provide a single opt-out mechanism, and one valid physical postal
address in the e-mail message (as
opposed to providing such information for
each organization). When the products or
services of more than one entity are commingled in a commercial e-mail message,
the entities can decide which party will be
the “sender” of the message. The “sender”
must meet the Act’s definition of “sender,”
must be clearly identified by including its
non-deceptive name, trade name, product
or service in the “from” line of the e-mail,
and comply with the Act’s requirements
regarding the transmission of commercial
advertisements. According to the Act, the
“sender” of a commercial e-mail message
is “a person who initiates a [commercial
e-mail message] and whose product, service, or internet Web site is advertised or
promoted by the message.”
As a final note, if your organization participates in joint marketing activities, it
should make certain that there is a written
agreement between the parties specifically addressing the responsibilities of the
designated “sender” of any joint commercial e-mails. If the designated sender does
not comply with the Act, all of the entities
whose products or services are advertised
in the e-mail will be liable as “senders”
under the Act.
The answers provided here should not be construed
as legal advice or a legal opinion. You are urged to
consult a lawyer concerning any specific situations
or legal questions you may have.
