Here are some specific guidelines under the CAN-SPAM Act that have emerged from some fairly recent FTC cases (i.e. FTC vs. Jumpstart Technologies, LLC and FTC v. and Optin Global, Inc.). Your business should use these case decisions as a sort of practical checklist on what not to do:
- Avoid Subject Lines that Falsely Suggest an Existing Personal or Business Relationship. The FTC has alleged that subject lines reliant upon appearances of “personal familiarity” are likely to be considered misleading. Subject lines that falsely suggest a personal relationship with the recipient, such as “hello” or “hi friend,” or an existing business relationship with the recipient, such as “Mortgage Application” or “Confirmation number,” have been specifically targeted.
- Make sure your subject lines accurately inform recipients of the actual content of the e-mail. There is no uniform label required, like the “ADV” that some state laws have attempted to require.
- Clearly and conspicuously identify that the e-mail is an advertisement (if you don’t have the recipient’s consent to send commercial emails). You should probably always include notice of advertisement language even though you may believe you have recipients’ affirmative consent. This can be difficult to demonstrate sometimes.
- Provide clear and conspicuous notice of opportunity to opt out. According to the FTC, you need “to provide clear and conspicuous notice of the opportunity to decline to receive further e-mail messages from the defendant.” Some of the opt-out notices found inadequate in recent FTC cases were “Why wait? You can stop getting mail at any time,” and “Reference options.” In the settlement agreement reached with Optin Global, Inc., the FTC suggested an opt-out notice form that would constitute a clear and conspicuous notice. The FTC required that Optin Global begin the opt-out notice with the text “to stop commercial e-mail from us…” Using something along these lines is a very good idea.
- Honoring of opt-out request and audit opt-out practices and ensure opt outs are processed effectively. You should pay special attention to the opt-out requirements. As stated in the guidelines, senders shouldn’t require more than one click for an opt-out. You can use a second optional click for some purpose, such as determining the reasons for the opt-out. Also, remember that requiring more than one web page visit in order to successfully opt-out is in violation of the CAN-SPAM Act.
- Refrain from sending “refer-a-friend” e-mails from your own mail solution under the referring friend’s e-mail address. Placement of a “friend’s” e-mail address in the “from” line constitutes the initiation of a commercial e-mail with deceptive header information. The FTC does not believe the referring friend is an “initiator,” as defined under CAN-SPAM. Evaluate existing referral programs to ensure compliance.
- Establish a policy against employees, affiliates and marketers, sales reps, etc. from sending unapproved, unsolicited commercial e-mail to others. This policy should be incorporated into the employee manual and in all affiliate or other agreements you enter into to promote your business. Specifically, you should require them to honor and forward to your attention the email addresses of any users who that have opted out. Also, be sure to cross-reference any email address the subject of an opt-out that you receive directly with all other promotional or other lists or database.