The CAN-SPAM Act: Federal Law to Stop Spam Emails

The CAN-SPAM Act

What Are The Requirements for Commercial Emailers

The CAN-SPAM Act: Requirements for Commercial Emailers of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act) establishes requirements for those who send commercial email, spells out penalties for spammers and companies whose products are advertised in spam if they violate the law, and gives consumers the right to ask emailers to stop spamming them.

The law, which became effective January 1, 2004, covers email whose primary purpose is advertising or promoting a commercial product or service, including content on a Web site. A "transactional or relationship message" ' email that facilitates an agreed-upon transaction or updates a customer in an existing business relationship ' may not contain false or misleading routing information, but otherwise is exempt from most provisions of the CAN-SPAM Act.

The Federal Trade Commission (FTC), the nation's consumer protection agency, is authorized to enforce the CAN-SPAM Act. CAN-SPAM also gives the Department of Justice (DOJ) the authority to enforce its criminal sanctions. Other federal and state agencies can enforce the law against organizations under their jurisdiction, and companies that provide Internet access may sue violators, as well.

What the Law Requires

Here's a rundown of the law's main provisions.( This page on the FTC website has more information. )

  • It bans false or misleading header information. Your email's "From," "To," and routing information ' including the originating domain name and email address ' must be accurate and identify the person who initiated the email.
     
  • It prohibits deceptive subject lines. The subject line cannot mislead the recipient about the contents or subject matter of the message.
     
  • It requires that your email give recipients an opt-out method. You must provide a return email address or another Internet-based response mechanism that allows a recipient to ask you not to send future email messages to that email address, and you must honor the requests. You may create a "menu" of choices to allow a recipient to opt out of certain types of messages, but you must include the option to end any commercial messages from the sender.

    Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your commercial email. When you receive an opt-out request, the law gives you 10 business days to stop sending email to the requestor's email address. You cannot help another entity send email to that address, or have another entity send email on your behalf to that address. Finally, it's illegal for you to sell or transfer the email addresses of people who choose not to receive your email, even in the form of a mailing list, unless you transfer the addresses so another entity can comply with the law.
     
  • It requires that commercial email be identified as an advertisement and include the sender's valid physical postal address. Your message must contain clear and conspicuous notice that the message is an advertisement or solicitation and that the recipient can opt out of receiving more commercial email from you. It also must include your valid physical postal address.

Penalties

Each violation of the above provisions is subject to fines of up to $11,000. Deceptive commercial email also is subject to laws banning false or misleading advertising.

Additional fines are provided for commercial emailers who not only violate the rules described above, but also:

  • "harvest" email addresses from Web sites or Web services that have published a notice prohibiting the transfer of email addresses for the purpose of sending email
     
  • generate email addresses using a "dictionary attack" ' combining names, letters, or numbers into multiple permutations
     
  • use scripts or other automated ways to register for multiple email or user accounts to send commercial email
     
  • relay emails through a computer or network without permission ' for example, by taking advantage of open relays or open proxies without authorization.

The law allows the DOJ to seek criminal penalties, including imprisonment, for commercial emailers who do ' or conspire to:

  • use another computer without authorization and send commercial email from or through it
     
  • use a computer to relay or retransmit multiple commercial email messages to deceive or mislead recipients or an Internet access service about the origin of the message
     
  • falsify header information in multiple email messages and initiate the transmission of such messages
     
  • register for multiple email accounts or domain names using information that falsifies the identity of the actual registrant
     
  • falsely represent themselves as owners of multiple Internet Protocol addresses that are used to send commercial email messages.

CAN-SPAM Act: A Compliance Guide for Business [PDF]

Do you use email in your business? The CAN-SPAM Act, a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have you stop emailing them, and spells out tough penalties for violations.

Despite its name, the CAN-SPAM Act doesn't apply just to bulk email. It covers all commercial messages, which the law defines as 'any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,' including email that promotes content on commercial websites. The law makes no exception for business-to-business email. That means all email ' for example, a message to former customers announcing a new product line ' must comply with the law.

Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $16,000, so non-compliance can be costly. But following the law isn't complicated. Here's a rundown of CAN-SPAM's main requirements:

  1. Don't use false or misleading header information. Your 'From,' 'To,' 'Reply-To,' and routing information ' including the originating domain name and email address ' must be accurate and identify the person or business who initiated the message.
  2. Don't use deceptive subject lines. The subject line must accurately reflect the content of the message.
  3. Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
  4. Tell recipients where you're located. Your message must include your valid physical postal address. This can be your current street address, a post office box you've registered with the U.S. Postal Service, or a private mailbox you've registered with a commercial mail receiving agency established under Postal Service regulations.
  5. Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that's easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn't block these opt-out requests.
  6. Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient's opt-out request within 10 business days. You can't charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don't want to receive more messages from you, you can't sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you've hired to help you comply with the CAN-SPAM Act.
  7. Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can't contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

Need more information?

Here are the answers to some questions businesses have had about complying with the CAN-SPAM Act.

Q. How do I know if the CAN-SPAM Act covers email my business is sending?

A. What matters is the 'primary purpose' of the message. To determine the primary purpose, remember that an email can contain three different types of information:

  • Commercial content ' which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose;
  • Transactional or relationship content ' which facilitates an already agreed-upon transaction or updates a customer about an ongoing transaction; and
  • Other content ' which is neither commercial nor transactional or relationship.

If the message contains only commercial content, its primary purpose is commercial and it must comply with the requirements of CAM-SPAM. If it contains only transactional or relationship content, its primary purpose is transactional or relationship. In that case, it may not contain false or misleading routing information, but is otherwise exempt from most provisions of the CAN-SPAM Act.

Q. How do I know if what I'm sending is a transactional or relationship message?

A. The primary purpose of an email is transactional or relationship if it consists only of content that:

  1. facilitates or confirms a commercial transaction that the recipient already has agreed to;
  2. gives warranty, recall, safety, or security information about a product or service;
  3. gives information about a change in terms or features or account balance information regarding a membership, subscription, account, loan or other ongoing commercial relationship;
  4. provides information about an employment relationship or employee benefits; or
  5. delivers goods or services as part of a transaction that the recipient already has agreed to.
Q. What if the message combines commercial content and transactional or relationship content?

A. It's common for email sent by businesses to mix commercial content and transactional or relationship content. When an email contains both kinds of content, the primary purpose of the message is the deciding factor. Here's how to make that determination: If a recipient reasonably interpreting the subject line would likely conclude that the message contains an advertisement or promotion for a commercial product or service or if the message's transactional or relationship content does not appear mainly at the beginning of the message, the primary purpose of the message is commercial. So, when a message contains both kinds of content ' commercial and transactional or relationship ' if the subject line would lead the recipient to think it's a commercial message, it's a commercial message for CAN-SPAM purposes. Similarly, if the bulk of the transactional or relationship part of the message doesn't appear at the beginning, it's a commercial message under the CAN-SPAM Act.

Here's an example:

MESSAGE A:

TO: Jane Smith

FR: XYZ Distributing

RE: Your Account Statement

We shipped your order of 25,000 deluxe widgets to your Springfield warehouse on June 1st. We hope you received them in good working order. Please call our Customer Service Office at (877) 555-7726 if any widgets were damaged in transit. Per our contract, we must receive your payment of $1,000 by June 30th. If not, we will impose a 10% surcharge for late payment. If you have any questions, please contact our Accounts Receivable Department.

Visit our website for our exciting new line of mini-widgets!

MESSAGE A is most likely a transactional or relationship message subject only to CAN-SPAM's requirement of truthful routing information. One important factor is that information about the customer's account is at the beginning of the message and the brief commercial portion of the message is at the end.

MESSAGE B:

TO: Jane Smith

FR: XYZ Distributing

RE: Your Account Statement

We offer a wide variety of widgets in the most popular designer colors and styles ' all at low, low discount prices. Visit our website for our exciting new line of mini-widgets!

Sizzling Summer Special: Order by June 30th and all waterproof commercial-grade super-widgets are 20% off. Show us a bid from one of our competitors and we'll match it. XYZ Distributing will not be undersold.

Your order has been filled and will be delivered on Friday, June 1st.

MESSAGE MESSAGE B is most likely a commercial message subject to all CAN-SPAM's requirements. Although the subject line is 'Your Account Statement' ' generally a sign of a transactional or relationship message ' the information at the beginning of the message is commercial in nature and the brief transactional or relationship portion of the message is at the end.

Q. What if the message combines elements of both a commercial message and a message with content defined as "other"?

A. In that case, the primary purpose of the message is commercial and the provisions of the CAN-SPAM Act apply if:

  • A recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a commercial product or service; and
  • A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is to advertise or promote a product or service.

Factors relevant to that interpretation include the location of the commercial content (for example, is it at the beginning of the message?); how much of the message is dedicated to commercial content; and how color, graphics, type size, style, etc., are used to highlight the commercial content.

Q. What if the email includes information from more than one company? Who is the 'sender' responsible for CAN-SPAM compliance?

A. If an email advertises or promotes the goods, services, or websites of more than one marketer, there's a straightforward method for determining who's responsible for the duties the CAN-SPAM Act imposes on 'senders' of commercial email. Marketers whose goods, services, or websites are advertised or promoted in a message can designate one of the marketers as the 'sender' for purposes of CAN-SPAM compliance as long as the designated sender:

  • meets the CAN-SPAM Act's definition of 'sender,' meaning that they initiate a commercial message advertising or promoting their own goods, services, or website;
  • is specifically identified in the 'from' line of the message; and
  • complies with the 'initiator' provisions of the Act ' for example, making sure the email does not contain deceptive transmission information or a deceptive subject heading, and ensuring that the email includes a valid postal address, a working opt-out link, and proper identification of the message's commercial or sexually explicit nature.

If the designated sender doesn't comply with the responsibilities the law gives to initiators, all marketers in the message may be held liable as senders.

Q. My company sends email with a link so that recipients can forward the message to others. Who is responsible for CAN-SPAM compliance for these 'Forward to a Friend' messages?

A. Whether a seller or forwarder is a 'sender' or 'initiator' depends on the facts. So deciding if the CAN-SPAM Act applies to a commercial 'forward-to-a-friend' message often depends on whether the seller has offered to pay the forwarder or give the forwarder some other benefit. For example, if the seller offers money, coupons, discounts, awards, additional entries in a sweepstakes, or the like in exchange for forwarding a message, the seller may be responsible for compliance. Or if a seller pays or give a benefit to someone in exchange for generating traffic to a website or for any form of referral, the seller is likely to have compliance obligations under the CAN-SPAM Act.

Q. What are the penalties for violating the CAN-SPAM Act?

A. Each separate email in violation of the law is subject to penalties of up to $16,000, and more than one person may be held responsible for violations. For example, both the company whose product is promoted in the message and the company that originated the message may be legally responsible. Email that makes misleading claims about products or services also may be subject to laws outlawing deceptive advertising, like Section 5 of the FTC Act. The CAN-SPAM Act has certain aggravated violations that may give rise to additional fines. The law provides for criminal penalties ' including imprisonment ' for:

  • accessing someone else's computer to send spam without permission,
  • using false information to register for multiple email accounts or domain names,
  • relaying or retransmitting multiple spam messages through a computer to mislead others about the origin of the message,
  • harvesting email addresses or generating them through a dictionary attack (the practice of sending email to addresses made up of random letters and numbers in the hope of reaching valid ones), and
  • taking advantage of open relays or open proxies without permission.
Q. Are there separate rules that apply to sexually explicit email?

A. Yes, and the FTC has issued a rule under the CAN-SPAM Act that governs these messages. Messages with sexually oriented material must include the warning 'SEXUALLY-EXPLICIT:' at the beginning of the subject line. In addition, the rule requires the electronic equivalent of a 'brown paper wrapper' in the body of the message. When a recipient opens the message, the only things that may be viewable on the recipient's screen are:

  1. the words 'SEXUALLY-EXPLICIT:'; and
  2. the same information required in any other commercial email: a disclosure that the message is an ad, the sender's physical postal address, and the procedure for how recipients can opt out of receiving messages from this sender in the future.

No graphics are allowed on the 'brown paper wrapper.' This provision makes sure that recipients cannot view sexually explicit content without an affirmative act on their part ' for example, scrolling down or clicking on a link. However, this requirement does not apply if the person receiving the message has already given affirmative consent to receive the sender's sexually oriented messages.

Q. How can I comment about the effect of the CAN-SPAM Act on my business?

A. The National Small Business Ombudsman collects comments from small businesses about federal compliance and enforcement activities. To comment, call 1-888-REG-FAIR (1-888-734-3247) or visitwww.sba.gov/ombudsman.

For More Information

The FTC works for the consumer to prevent fraudulent, deceptive, and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters consumer complaints into the Consumer Sentinel Network, a secure online database and investigative tool used by hundreds of civil and criminal law enforcement agencies in the U.S. and abroad. 

Your Opportunity to Comment

The National Small Business Ombudsman and 10 Regional Fairness Boards collect comments from small businesses about federal compliance and enforcement activities. Each year, the Ombudsman evaluates the conduct of these activities and rates each agency's responsiveness to small businesses. Small businesses can comment to the Ombudsman without fear of reprisal. To comment, call toll-free 1-888-REGFAIR (1-888-734-3247) or go towww.sba.gov/ombudsman.

 

September 2009

 

For More Information

The FTC works for the consumer to prevent fraudulent, deceptive and unfair business practices in the marketplace and to provide information to help consumers spot, stop, and avoid them. To file a complaint or to get free information on consumer issues, visit www.ftc.gov or call toll-free, 1-877-FTC-HELP (1-877-382-4357); TTY: 1-866-653-4261. The FTC enters Internet, telemarketing, identity theft, and other fraud-related complaints into Consumer Sentinel, a secure, online database available to hundreds of civil and criminal law enforcement agencies in the U.S. and abroad.


Other resources

Securing Your Server

Honoring Unsubscribe Claims


For a comprehensive list of national and international agencies to report scams, see this page.