Mallory King - April 9, 2020 - Internet Law, Online Advertising, Spam Law
Email continues to be a great option for reaching out to existing and prospective customers. You can attract business and inform consumers about changes in operations and exciting updates to your goods or services. However, email marketing can also be an area in which you may inadvertently run into legal trouble if you do not take precautions and inform yourself about the standards set by the laws and agencies that govern advertising. By following these tips for best and best-to-avoid practices, you will be well on your way to developing an email-based advertisement campaign that will serve your company well without risking any unnecessary legal complications.
As with all kinds of marketing, it is important that you do not mislead customers with the information you use to attract their business. False advertising can put a quick end to your email campaign if you even slightly or inadvertently lead your customers to think something false about your business. Additionally, email advertising has a few more requirements for truthfulness that will keep you out of legal danger. The CAN-SPAM Act, which controls the content of emails, requires that the email header correctly identify the proper parties under “To” and “From”. The Act also requires that the subject line actually describes the true content of the body of the email.
While it is generally allowed to send an email, unsolicited, to an individual with no confirmation of their consent to the message, you cannot send that person further emails once they have indicated that they do not wish to receive emails from you. In order to better effectuate this option for consumers, the CAN-SPAM Act requires that commercial emails include a clear option and mechanism for the recipient to opt-out of future messages from the sender, often by taking their name off of an automatic mailing list via an “unsubscribe” link.
Even if your email is otherwise entirely in compliance with the laws and regulations that govern email advertisements, if you do not take steps to make it clear to recipients that what they are reading is advertising, you risk deceiving consumers, and laws are in place to prevent that. There is no concrete way that will tell you how to take this step. There is not even any requirement that this notification occur before the recipient has a chance to read the material. All that is required is that the message be identified as an ad in a way that is clear and conspicuous. How you make that notification is up to you, whether it is immediately marked in the subject line, or clearly laid out at the very end of the message.
There are many companies that will create and send emails to customers for your business, or you may delegate this work to the advertising company that you usually work with. This can be a great option, especially if you are inexperienced with advertising, and wary of its pitfalls already. However, you should be aware that even if the creation and distribution of advertisements is out of your hands, the liability if those emails violate advertising laws and regulations still falls on you, as the person responsible for transmitting the materials. You have a responsibility for the individuals affected by the advertising materials bearing your company’s name, even if you were not personally responsible for the legal mistakes made in the creation of the advertisements. Therefore, you will still want to be familiar with the rules for your advertisements, and double check your advertising company’s materials for any oversights that may lead to you facing legal trouble.
If you are using a digital form of advertising, it is likely that you intend for your reach to be greater than the boundaries of just one state. You must be sure that your advertisement is in compliance with the legislation in each area where the marketing materials will appear. This is because if someone has a legal issue with your ad, they will bring their complaint in the area where they are located, or where they received the ad. Just because the content of the materials may be in compliance with the state laws in a state that allows more leniency in advertising does not mean that this same ad will be legally acceptable nationwide.
The Federal Trade Commission is the agency responsible for consumer protection, and so they handle the regulation of advertising across the United States. As advertising is a primary focus of the agency, it is the best equipped entity for creating guidelines for different marketing schemes and adapting to the ever-changing world of digital marketing. In addition to being the agency that you would have to answer to if you ad is not acceptable, they also can provide guidance and resources to potential advertisers so that those companies do not run into trouble in the first place.
While using emails to attract customers is a smart business plan, sending those emails out without checking their compliance with advertising laws and regulations and accumulating legal fines and costs is not good for business. This can be a complicated area that can affect a lot of people all over the country. Overall, it is important that you use proper judgment and make the right choices for your company’s advertising.
This blog post contributed, in part, by Traverse Legal Virtual Law Clerk Scott Pehoushek.