My email box has been absolutely flooded with Black Friday, Cyber Monday, & Giving Tuesday deals. The holiday shopping season is definitely upon us. Like a true fashion law nerd, as I sort through these messages,  I reflect on the regulations governing email marketing messages. If you are also coveting  holiday shoppers with your email messages, please take a look at these tips to help you comply with regulations. As always, these tips aren’t legal advice, but you can use them to start your research. Please speak to an attorney directly if you have questions about your marketing strategies. To reach out to Law On The Runway with questions, you can email me directly, [email protected]

Tip #1: Know Why You Are Sending The Message 

The Federal Trade Commission (FTC) helps to enforce the CAN-SPAM Act, which as been in effect since 2003. When you are sending an email, either to one person, or to multiple people at once, ask yourself what the primary purpose is of the email. The FTC has created three categories for emails:

1. Commercial Content: when you are advertising your products or services, such as offering a Black Friday special, or letting potential customers know about new holiday line.

2. Transactional or Relationship Content: when you are giving information to a customer or potential customer regarding a specific purchase or potential purchase, such as answering questions directly from a customer about gift wrapping options,membership fees, or giving a status update on shipping. The FTC has given us 5 categories of primary purposes that fit within this category:

•  Facilitating, completing, or confirming a commercial transaction (a sale) that the recipient previously agreed to enter into with your company
•  Giving warranty, recall, safety, or security information about your products or services
•  Giving information if you are changing terms or features of the services or products, and account information if you offer memberships, or subscriptions accounts
• Offering information about employment relationships or employment benefits, or
• Information about delivering products or services that your customer or recipient has already agreed to

3.  Other Content: This is content that is neither transaction or commercial. This type of email is rare for mass marketing email campaigns, or for business related emails in general, but perhaps you are simply letting customers know that you are going on vacation for the holidays, and will be temporarily closing your shop. As long as you aren’t encouraging customers to purchase before your vacation, the FTC may label this email in the “other” category.

If you feel that your planned email fits in two categories, that’s ok, and this is common. The FTC asks that you determine the primary purpose of your sending this email, basing it from the recipient’s perspective. Ask yourself, if you were in the shoes of the recipient, what type of message would you assume you are receiving based on the subject line and content of the message? What is the overall impression of the message?  If you believe the message is primarily Commercial Content, then you must comply with the CAN-SPAM rules.

Tip #2: Add These Messaging Techniques To Your Marketing Plan

In order to comply with CAN-SPAM, when you are sending Commercial Content, you must comply with these messaging guidelines.

1. Accurately identify who you are and business that is responsible for the message. This includes an email address that reflects who you are.

2. Write subject lines that accurately states what the reader will find inside of your message. You may want to be creative with your email titles to catch the eye of your recipient, but make sure they know before they open the message that it is a marketing or advertisement message.

3. Tell your recipient that the message is an advertisement with the body of the message. There’s not one way to accomplish this, but do make sure that is clear you are intending the message to be an advertisement, and not personal communication.

4. Offer your physical mailing address. CAN-SPAM requires that when you are sending Commercial Content, you are giving the recipient a physical address for your business. This can be your street address where you business is located, or a P.O. Box.

5. Include easy to locate “unsubscribe” or “opt-out” instructions, allowing your recipient to leave your mailing list.  For easy locating within the email message, you can be creative with colors, sizing, and location. You can offer an email address that they can send notice to, or you can have a link to an online form.  Make it simple, and reliable.

Tip #3: Take Your Unsubscribers Off Your Mailing List Quickly 

CAN-SPAM gives two deadlines that must be followed for unsubscribing. When you offer your unsubscribing option, that option must be useful for at least 30 days after you send out the message with the unsubscribing option. For example, you have a link to a unsubscribing form, make sure that form will work for at least 30 days.

Once you receive the notice that your recipient wants off your mailing list, you must remove them within 10 days of that notice.

Tip #4: Monitor What Others Are Doing For Your Company

You may hire a marketing company or PR firm to help you with your marketing goals. If when you are giving this marketing task to another, it is your company’s responsibility to comply with CAN-SPAM, so be sure to look over the work of your helpers. Each separate violation of the law can cause you a penalty of up to $16,000.

This blog is touching the basics of CAN-SPAM, and only reflects US regulations. Every country has their own laws on sending email advertisements and marketing. In particular, if you are marketing in Canada, you may want to check out their new laws on email marketing. This website is particularly helpful. If you have any questions, please feel free to reach out, [email protected]