By now, as a reader of this blog, you are an expert on CAN-SPAM, right? If you’re not the expert that you’d like to be, you more than likely are aware of the high level requirements set by the FTC to regulate bulk email. If not, here’s a primer Bronto released recently to get you up to speed on everything you need to know about commercial v. transactional email requirements and how to be in compliance with the law on both.
What you may not know is that while CAN-SPAM (or other international email laws) directly relates to the distribution of bulk email and ways to go about not being relegated to the illegal ilk of spammers, there are other legal responsibilities email marketers have as well that fall outside the of scope of just email.
Some questions to be sure you have an answer for…
- Who are you sending to? Under commerce laws set by different arms of federal and state regulatory bodies, you must be cognizant of whom your intended audience is. Are you sending to recipients in different countries? If so, you should be aware of their laws such as Safe Harbor. How about the age of the recipients you’re targeting? Specific regulations around protected age classes exist (for example COPPA (Children’s Online Privacy Protection Act) for minors under the age of 13). Are you ensuring compliancy with other protected classes covered under ADA (Americans with Disabilities Act) or EEOC (U.S. Equal Employment Opportunity Commision)?
- What are you sending? Again, as with any retailer selling products, regardless of what channels they use to market through (email being one of potentially many), certain products or services are off limits. Are you sure you’re not marketing anything illegal? Even if it seems innocuous, you should be aware of commerce laws around certain items (ranging from DHS (Department of Homeland Security) to age restricted products). Other items may have a higher level of scrutiny or certification bar, like anything related to an FDA (Food and Drug Administration) covered product or service. Or, if you’re sending anything health care related, are you HIPAA (Health Insurance Portability and Accountability Act) compliant?
- Who do you go to? There’s a lot more to sending email than being CAN-SPAM compliant, as you can see. However, what legal hoops and checks you need to comply with is entirely dependent upon you, the marketer. Your ESP can provide broad advice on the actual mechanics of using email and how the transmission of email itself remains legal. If you’re a Bronto client, please contact us and we’ll be glad to discuss options although we, as most ESPs, have built in safeguards to catch CAN-SPAM pitfalls to help the client send email the right way. However, we cannot provide legal advice on your actual line of business and what the letter of the law is in regards to what your particular offerings are (i.e., the creatives). This is where you need to have a good resource lined up who can, from an authoritative perspective, give you the final word. It may be in house counsel. It may be outside counsel. It may be your friend who sits on one of the government commissions. But, you must have some entity to guide and coach you through what you need to be aware of when marketing.
Please note, this is not meant to scare you. In fact, quite the opposite – this is a call to action for you, as the marketer, to rise above email for a moment and look at your business as a whole. We want you to be successful, but no matter how successful an email marketing campaign may be, the success won’t last if the client doesn’t ensure their own house is in good legal order and gets shut down. Also, it is a sign of great brand affinity and instills trust in your recipients/customers when they see you’re holistically in charge of staying up to date with whatever laws and regulations affect you, the marketer, as well as potentially your recipients. Do I trust Walgreens with medications? How about Kraft with my cheese? Or H&R Block for tax purposes? You bet I do. While they may not be your vendor of choice, I know that by going to these purveyors, I’m not going to be receiving anything “sub par” according to government requirements or worry about them going out of business because of a government crackdown (at least I hope!).
Email marketing is an extension of a core product or service suite that you offer. As such, you must ensure your business is protected by knowledge of and remediation around any regulatory auspices you fall under. Email deliverability and best practices help position your campaign for maximum effect and success, but your offering drives the relationship with recipients.
Chris Wheeler
Director of Deliverability at Bronto
@ChrisAWheeler
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