Navigating the New Can Spam

Though the Federal Trade Commission's clarifications to the Can Spam Act issued earlier this year generally were aimed at simplifying its requirements for everyone involved, the result hasn't been all that simple for direct marketers.

In fact, the rulings can be extremely tricky for DMers to understand, according to Trevor Hughes, executive director of the E-mail Sender and Provider Coalition.

“Just like radio marketing, just like TV marketing, just like direct mail marketing, the legal aspects associated with e-mail marketing are not for amateurs anymore,” he says.

For example, in concluding that people can't be required to pay a fee, provide information other than their e-mail address and opt-out preferences, or take any steps beyond sending a reply e-mail or visiting a single Web page to opt out of receiving future e-mails from a company, the FTC put many DMers' e-mail preference centers and retention efforts in violation of the law.

Marketers can no longer place a Web page in front of an opt-out page to make a retention offer. They're also prohibited from requiring a password to ensure that the address holder is actually making the request.

Moreover, DMers can't force people to give information, such as a reason for opting out.

Under the FTC's clarifications, marketers can make retention pitches to would-be unsubscribers, and they can offer people an opportunity to get less mail, but it all must be done on the same page as the one providing the opt-out function.

“It's got to be a single page, and that's not an ubiquitous practice in marketing,” Hughes says.

Meanwhile, the ruling on multiple advertiser mailings — by which a single sender can be designated as the one that must honor opt-outs — is also more complicated than it seems, but not as complicated as the issue the FTC addressed.

Prior to the FTC's revisions, a multiple-advertiser e-mailer such as an affiliate marketer that grouped several offers in a single e-mail would theoretically have to import suppression files of all the people who had opted out from each of the advertisers in the message. The affiliate marketer in turn — again theoretically — would also have to pass back a suppression file to the advertisers of all the people who'd opted out of its mailing.

“That's fine when it's just one advertiser in the message,” Hughes says. “But when it's two or three or four, it quickly becomes untenable. It wasn't a workable situation to pass a whole bunch of suppression files and get back a bunch of suppression files.”

To fix this problem, the FTC ruled multiple-advertiser mailers can designate a single sender as long as the sender meets the definition stipulated in Can Spam as one that “initiates a commercial electronic message in which it advertises or promotes its own goods, services or Internet Web site [and] is identified uniquely in the ‘from’ line of the message.”

Says Hughes: “Now a list owner can say to advertisers, ‘We take the hit on the opt out.’”

However, the “from” line must be from the designated sender, not any of the other advertisers in the mailing. Also, the opt-out mechanism must go back to the sender in the “from” line.

And because of Can Spam's definition of “sender,” the designated sender must also advertise in the message, even if it's via a list-rental agreement, says Hughes. “Otherwise [that firm] can never qualify as a sender.”

But he adds: “The Can Spam Act doesn't say what to advertise or that your advertisement must be the most prominent. It just says you have to advertise.”

So Hughes believes copy such as “This message is brought to you by Acme Marketing. To learn more about our company and the services we offer, please click here,” with a link back to the sender's site, would suffice.

In any case, he recommends consulting experts.

“While the Can Spam rules are relatively clear, they can become incredibly complicated depending on the context in which you're doing your marketing,” he says. “As a result, you've got to have somebody who knows what he's talking about look at your stuff.”

Magilla Marketing, Ken Magill's weekly e-mail newsletter, is archived at http://directmag.com/magill/.