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Can-SPAM E-mail rules

As some of you may be aware, effective March 28, 2005, the FTC’s “CAN-SPAM” Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) will be in effect. The CAN-SPAM Act establishes requirements for individuals and/or entities that send e-mail of a commercial nature, sets forth penalties for those who violate the provisions of the act and provides consumers the right to opt-out of receiving any future e-mails from the individual or entity. One of the main focuses of the FTC in the implementation of the CAN-SPAM Act is the classification of e-mails into two distinct categories, commercial and transactional/relationship.

CATEGORIZING E-MAILS

A commercial e-mail is one where the e-mail is an advertisement for a commercial product or service. An example of a commercial e-mail is one where the e-mail is promoting a commercial product or service offered by an individual or entity. For example, solicitation by a REALTOR advertising his/her services in selling/locating a property. Commercial e-mails are subject to CAN-SPAM regulations. The second category of e-mails is transactional/relationship. This category covers an ongoing transaction between a business and a customer involving an identifiable good or service previously or currently being provided by the individual and/or entity to the recipient. For example, e-mailing purchase offers to a seller or e-mailing a newsletter (as long as it falls within the criteria set forth below). Transactional/relationship e-mails are not subject to CAN-SPAM regulations.

Under CAN-SPAM, e-mails do not have to be classified as merely commercial or transactional/relationship in nature. An e-mail can be a combination of both. In this instance, it is important that the sender of the e-mail look at the overall content of the e-mail and determine its “primary purpose”. If a reasonable interpretation of the subject line would lead one to conclude that the e-mail is commercial or if the transactional/relationship portion of the e-mail is not appear in whole or substantial part at the beginning of the e-mail, it will be considered commercial.

Unfortunately, there are no hard and fast rules relating to the determination of whether an e-mail that is a combination of both classifications can be deemed commercial in nature. Therefore, if there is any doubt as to how an e-mail is to be classified, one would be wise to err on the side of caution and deem the e-mail commercial in nature. Remember, it is always better to be safe than sorry.

COMLYING WITH CAN-SPAM

So, now that we deemed an e-mail is to be commercial in nature, what do we do to make sure it complies with the CAN-SPAM Act? Believe it or not, the answer is simple, and only consists of three easy steps:

1.) The subject line must indicate that the e-mail is commercial in nature and contains an offer for products or services from the association. 
2.) The subject line cannot be deceptive as to the content of the e-mail. In other words, the subject line must accurately depict the content of the e-mail.
3.) The e-mail must contain the physical address of the sender and an option for the recipient to opt-out of any further e-mails. The following is an example of the opt-out currently in use by NYSAR:

“You are receiving this information as a member of the New York State Association of REALTORS. NYSAR occasionally sends information regarding association programs and services as well as industry news to its membership. 
To opt-out of future mailings, click reply and type remove in the subject line.
New York State Association of REALTORS, 130 Washington Ave., Albany, NY 12210”

When an individual chooses to opt-out of any future e-mails, the sender must comply within ten (10) business days and cease all commercial e-mails to the individual. As of the date of this publication, there is no provision allowing a “safe harbor” or automatic warning for violators.

NEWSLETTER EXCEPTION TO CAN-SPAM

The only exception to CAN-SPAM is where an association publishes and e-mails newsletters to its members. The newsletters can contain advertisements or materials that would be deemed commercial so long as the newsletter is sent via a subscription. For instance, the ACME Board of REALTORS sends each of its members an electronic newsletter via e-mail on a regular basis. The newsletter contains informational articles relating to issues that would interest a REALTOR©. The newsletter also contains advertisements. As long as the newsletter is not for the sole purpose of promoting the advertisements and the content is not weighted in favor of the advertisements, it falls within the exception. Therefore, the advertising portion of the newsletter should not overwhelm the other content. Furthermore, the members should be aware that as part of their membership, they have agreed to receive an electronic subscription to a newsletter. Again, if you are unsure of the classification of the e-mail, include the opt-out.

The CAN-SPAM Act is fairly simple in its application. The most important thing a sender of commercial e-mail must remember is to not be deceptive in the subject line of the e-mail and to always include the opportunity for the recipient to opt-out as well as the senders physical address at the bottom of every commercial e-mail sent.

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