CAN-SPAM: The Reality

We finally have a national law to replace a patchwork quilt of state legislations that attempted to deal with spam. Regardless of whether you feel CAN-SPAM isn’t strong enough or relieved it’s replaced that onerous California law, it is law now. You have to deal with it. I’m sure most of you know what’s in it, so I’ll focus on how to deal with its key points.

CAN-SPAM’s biggest impact will be on advertisers who obtain much or all of their leads and customers from third parties or affiliates, when those affiliates use email. We’ve heard through the grapevine several advertisers are putting controls into place to ensure affiliate managers and their networks will comply with the law. Some are canceling any and all email promotions until these practices are in place and a court of law determines fine points concerning unsubscribes.

We must balance compliance so we don’t eradicate the ability to acquire new customers with email. We also don’t want to overreact as we attempt to better define a new email playing field. Meanwhile, bear in mind CAN-SPAM holds advertisers liable, along with all parties involved in sending email. Everyone in the email chain must toe the line.

Control is key. The last thing an advertiser needs is an affiliate sending email that violates the law. The advertiser may not even know about it. Most likely, advertisers, affiliate managers and other companies will develop affiliate guidelines. Affiliates will be required to sign off on these, and fail-safes will be put into place.

During this period, email volume will likely drop for legitimate email marketers, and all entities in the email chain (advertiser, affiliate, agency, service bureau, Web sites, email list owners, etc.) will see revenues dip. Hopefully, it won’t last long. (The law won’t affect true email abusers, against whom it was written).

Compliance is also key in this new era. Advertisers must ensure rules and processes required for affiliates are followed. If you’re an advertiser, you may want to work with your promotional partners to ensure the following components of the law are upheld:

• Header falsification. One way to police this, and other no-noes under the new law, is to seed the lists of all affiliates who mail your offers. Checking email you receive is an easy way to spot falsification.
• Misleading subject lines. It’s standard practice among many advertisers: Ensure you clearly state emailers can only use approved subject lines, copy, and graphics. You can easily monitor this from your seeded addresses.
• Unsubscribe process. The law requires emailers remove within 10 days anyone who unsubscribes. You can review seeded email to make sure an unsubscribe link is present and working.

There’s a gray area in this requirement. Say an advertiser and an affiliate emailer both maintain a database, and someone unsubscribes from a mailing sent by the emailer on behalf of the advertiser. It’s not 100 percent clear if the unsubscribe request must be honored for both advertiser and emailer, or if the request pertains only to the emailer’s database. A court may need to decide.

If you interpret this to mean someone unsubscribing must be removed from both databases, it creates a logistical nightmare. Imagine this scenario:

Advertiser A, with its own prospect and customer database, use affiliates A, B, C, D, and E. Affiliate A owns four different databases. All the affiliates mail the advertiser’s offer; 1,389 people unsubscribe from affiliate A’s database. Does this mean Affiliate A must provide those email addresses to the advertiser, who in turn must remove them from its own database? Must it also send the addresses to every affiliate it has and require them to remove the addresses from any databases they have?

Obviously that scenario could never work. It isn’t worth the tremendous time and effort to implement such a system. So what do you do?

After lots of discussion with advertisers and others, the most sensible long-term (but currently impractical) approach is to unsubscribe people from both the emailer’s list and the advertiser’s database whenever possible. Keep an electronic record for proof.

Going further than this is overkill. If a consumer opts in to an offer from multiple sources, she deserves to get email from multiple sources. The larger point is all affiliates should honor unsubscribe requests and be able to provide proof upon request.

• Notice the email is a solicitation. A clear notification that a message is commercial is required, but you don’t have to place a conspicuous “ADV” in the subject line. From a marketing perspective, we recommend incorporating the following in the attribution line:

  You are receiving this advertisement because you requested information from [the advertiser or list owner].

• Valid postal address. This shouldn’t be a problem for any legit marketer. Include a real postal address where consumers can contact you. Time will tell if this is the advertiser’s or the list owner’s.

We appointed a compliance officer at our company. I suggest you do the same. Though legitimate marketers strive to utilize “best practices,” you must now make sure your best practices are in line with the new legislation.

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