What Is the CAN-SPAM Act and How Does It Impact My Email Marketing?

Melanie Balke
March 6, 2023

It’s nothing new, but the CAN-SPAM is an essential part of every email marketer’s toolkit. The legal framework — passed way back in 2003 — outlines how commercial email messages are sent. Since its passage, this marketing act has had far-reaching consequences for the humble commercial electronic mail message, and understanding the implications is the first step to success!

However, being a legal document, it isn’t always easy to understand the CAN-SPAM Act of 2003. To help businesses everywhere succeed, I’ve compiled a handy guide to navigating the legalities of email marketing. Keep reading this blog post to learn more!

What Is the CAN-SPAM Act?

Twenty years ago, the CAN-SPAM Act changed the face of American email marketing, but what is it?

As a whole, it’s a set of guidelines for marketers, but these are more than suggestions. Failure to comply with these rules can destroy a business’ finances! As of 2023, the Federal Trade Commission states that a single violation can cost “…up to $50,120.”

The consequences stretch beyond financial hardship, too. By failing to comply with this landmark legislation, businesses often end up in spam folders. Repeated attempts to circumvent CAN-SPAM compliance can also result in blacklisting, which dramatically lowers your deliverability.

Why Was the CAN-SPAM Act Introduced?

Per its own introduction, the CAN-SPAM Act was introduced to quell the Wild West vibes of early 2000s internet use. In those days, — back when many people still preferred to type “e-mail” over “email” — consumers were finding more and more sexually oriented material in their inboxes. In addition to non-solicited pornography, every e-mail address was also the target of frequent scams.

The CAN-SPAM Act helped legitimize the electronic mail message.

The name of the bill is, in fact, a backronym. Working from the base — CAN-SPAM — legislators devised an apt description for the legal framework, ultimately dubbed the “Controlling the Assault of Non-Solicited Pornography and Marketing Act.”

Terms to Know Before We Start

There’s one last thing to cover before I can outline the specifics of how this law impacts your e-mail messages.

Before you can send any commercial content, you should know some basic terms. These phrases may be familiar, as they’re often used in industry jargon. However, the text of the CAN-SPAM Act also defines many of these phrases in a legal sense.

So, to ensure everyone is on the same page, let’s do a quick review of some key spam-related words.

Affirmative Consent

Of the CAN-SPAM Act’s changes, one of its best-known features is known as “affirmative consent.”

This phrase is a fancy way of referring to the relationship between a business and its subscriber. Before you send commercial messages, you must receive affirmative consent. Otherwise, you’ll have to prominently declare every email an advertisement. More importantly, unsolicited commercial e-mails are highly annoying!

The most common ways to obtain affirmative consent are website-based forms for sending and processing opt-in requests.

Commercial Email

A commercial email is one of the two types of messages defined by the CAN-SPAM Act.

All commercial emails fall under the jurisdiction of the CAN-SPAM Act — and, by extension, the Federal Communications Commission.

This broad category of correspondence includes any message meant to sell a product or promote a service. Common examples of commercial emails include:

  • Information and updates about an employment relationship
  • Product launches or teases
  • Promotional campaigns
  • Sales announcements
  • Transactional or relationship content

Transactional or Relationship Messages

The second category of email is known as a transactional or relationship message. While these messages must still comply with legal requirements, they’re subject to slightly less scrutiny.

More precisely, true transactional messages can be sent without affirmative consent.

While businesses may sometimes add some commercial content (e.g., through featured product links or recommended items), the primary purpose of these campaigns is informational. Many transactional emails are sent to only one person, generally as the result of an action on a website or form.

Common examples of a transactional or relationship message include:

  • Email receipts
  • An account statement or account balance information
  • Purchase confirmation emails
  • Recall notices
  • Warranty updates

Sometimes, a message may include both a commercial purpose and an informative update. In this situation, the FCC determines the message’s classification. The final verdict is delivered based on the content, layout, and conceptual design of the email.

The CAN-SPAM Requirements You Need to Know

A legal library. The overlaid header text reads, "Requirements: What to Include in Your Emails."

So, what does all that mean?

The CAN-SPAM Act includes multiple provisions, each of which is intended to facilitate clear communication between brands and customers. To learn even more about an already complex topic, I’ll outline the three essential elements of a legal email marketing campaign:

  1. Clear and honest advertising
  2. A simple opt-out request link
  3. A valid physical postal address

By following these requirements, your commercial advertisement avoids legal reprisal. However, these rules also give marketing emails more legitimacy. As a result, your campaigns will garner higher open rates.

Writing Clear Email Marketing

Every commercial e-mail must be clear and avoid misleading language. This law applies to every part of the message, and additional requirements apply to cold emails.

Misleading header information is just as bad as a false subject line.

Likewise, body copy must convey promotions clearly. CAN SPAM’s requirements also stipulate that cold emails include a clear and conspicuous notice of commercial intent.

Failure to comply with these guidelines is classified as fraud by the FTC and other federal agencies.

Overlapping palm leaves. The overlaid text reads, "Clarity: What Counts as Misleading Text? Failing to comply with any CAN-SPAM requirements makes a message misleading. However, there are also specific examples: Any false or misleading claims, Deceptive subject lines, Misleading header information, and Using a false originating domain name."

Information to Include in Every Email

Businesses must also include certain information in every email. As mentioned before, these mandatory tidbits are the business’s physical address and an opt-out link. Notably, this law also applies to marketing affiliates.

Such instructions may seem simple, but there’s a fair bit of nuance to these requirements. So, let’s dig deeper!

What Counts as a Physical Address?

Under federal law, every commercial electronic mail message must prominently feature the business’s address; the requirement applies to commercial and transactional messages. Furthermore, the text of the CAN-SPAM legislation provides plenty of clarity on the matter.

There are three acceptable types of up-to-date mailing addresses:

  1. A physical street address (often used by brick-and-mortar businesses)
  2. A post office box registered with a valid commercial mail-receiving agency (e.g., FedEx, UPS, or USPS)
  3. Any registered private mailbox

I cannot understate the importance of including this information. Remember: Federal law requires the inclusion of a mailing address in every commercial message. It doesn’t matter if you’re sending a receipt or a simple customer service reply. You must attach one of these three address formats to every email — regardless of the primary purpose. Otherwise, you’ll quickly find yourself on the wrong end of the law.

What Does the CAN-SPAM Act Say About Opt-Outs?

There are also rules surrounding your brand’s opt-out link. Simply including a link enough not enough; that link must also follow multiple regulations.

Above all — and much like physical addresses — the opt-out links must be placed in a prominent spot. Under the CAN-SPAM Act, all unsubscribe links must meet four criteria:

  1. Accessibility: All users must have access to an online webpage or some other internet-based mechanism for unsubscribing. Simple forms and confirmation pages are acceptable and common options for fulfilling this criterion.
  2. No Additional Action: Users cannot be compelled to take any additional steps to be added to opt-out lists. An opt-out request should be completed with a single click. However, if necessary, businesses can request the user to confirm their email address.
  3. No Additional Transactions: Users cannot be compelled to pay a fee to process or expedite their opt-out request.
  4. Prompt Response: All opt-out requests must be promptly honored. More precisely, you should be able to “… process opt-out requests within 10 business days.”

Now, brands are given a tiny bit of leeway here. In addition to opt-out requests, companies can also offer an alternative opt-out mechanism with opt-out preferences. In this situation, you are allowed to ask for additional information. Such messages usually ask the user to select their interests, refining their segmentation and the accuracy of their campaigns.

After a User Opts-Out

Once an opt-out has been processed, CAN-SPAM — and most of the other anti-spam laws of the world — has additional prohibitions for such a request. Keep in mind that most of these actions are considered shady at best among consumers, and failing to comply with the legislation will ultimately hurt your relationship with your customers.

With that said, let me elaborate.

CAN-SPAM states that all commercial e-mail messages must stop immediately upon processing opt-out requests. In the future, the user may re-subscribe to your commercial messages, but you cannot contact them during the interim period.

Moreover, if your system has an opt-out list, the consumer’s information cannot be transferred to anyone other than the platform used to honor the request. In the simplest terms: You can only give an opted-out user’s information to the platform that processes your requests.

The sale of such information is illegal. While you are not required to purge that user’s information from your system, you are expected to honor their requests.

Who Is Responsible for Compliance?

To wrap things up, I’ll conclude with a cautionary note.

Both the company and its contractors are responsible for CAN-SPAM compliance.

Contracting an agency is not an excuse to violate the CAN-SPAM act. In the event of CAN-SPAM violations, both the company and its contractors are ultimately charged for the crime.

You can try to avoid these laws as much as you want, — through dubious means, multiple e-mail accounts, or some other unknown strategy — but you’re only hurting yourself. These laws were originally passed to protect consumers, and they continue to do so 20 years later.

Generally, the best way to comply with the legislation is to treat every email as if the CAN-SPAM Act applies.

A Quick Note About Explicit Content

The CAN-SPAM Act also includes rules and regulations for businesses distributing adult- or sexually-oriented material. I will not be covering these regulations in this post, but they can be found on the Federal Trade Commission’s website!

In general, the most important thing to know about adult-oriented advertising is that you must have a sound database. Moreover, you must have a way to prove that you are not sending what would could be deemed “non-solicited pornography.”

Avoid the Legal Headache

That’s a lot of information to remember, isn’t it?

Unfortunately, many businesses don’t have the time or resources to study all of this. Between the busywork of running a business and executive duties, many business owners don’t have the time to double- and triple-check the legality of their content marketing.

Fortunately, there’s a simple solution.

I founded The Email Marketers to give every business — no matter the size — a chance to succeed. My hand-picked team of experts and I know the ins and outs of the CAN-SPAM Act. We also know how to write stunning emails that really convert.

That means you don’t have to worry about any of this! Just tell us what you need, and let us work our magic.

If you’re ready to expand your business and dive into the lucrative world of commercial electronic mail messages, it’s time to reach out to us! Schedule a consultation today, and you’ll be amazed at the difference The Email Marketers can make.

In the meantime, be sure to check out the rest of my blog for more tips, tricks, and handy insights!

(The information contained in this site is provided for informational purposes only and should not be construed as legal advice on any subject matter.)