In August 2008, the Federal Trade Commission issued updates last month to the CAN-SPAM Act of 2003. Below we recap anti-spam regulations and highlight the latest changes in these areas:
Refresh my memory – what’s CAN-SPAM all about?
CAN-SPAM established requirements for all US businesses when they send emails whose primary purpose is advertising or promoting a product or service.
Examples include emails from health clubs and fitness centers that promote open houses, specials on personal training or nutrition counseling, trial memberships, free classes, or membership renewals.
The general idea is that businesses should only use permission-based email marketing: they should only send marketing emails to people who have actually agreed to receive them.
CAN-SPAM rules apply to all businesses regardless of size. Failure to comply has consequences ranging from furious email recipients to financial penalties.
What are the rules for adding email addresses to our list?
You should only market to individuals who have “opted-in” to receive your emails.
“Opted-in” means that they have specifically asked to receive your emails, usually by checking a “subscribe me” box on your website or by filling in their email address in a subscription box on your website.
Always get permission before adding people to your email marketing list. Do not use pre-checked boxes that automatically add people to your list. Do not automatically add customers to your list simply because they provided email addresses in order to receive a receipt.
Buying email addresses is usually a bad idea. For example, many wellness businesses have recently received unsolicited emails offering them lists with thousands of physicians’ email addresses.
Even if these addresses were legitimately obtained (and they probably weren’t), the recipients won’t recognize your business name, won’t know how you got their email address, and are therefore likely to “junk” your email or notify their Internet service-provider (Yahoo, AOL, etc.) that it’s spam. This increases the likelihood that their ISP will blacklist your future emails.
What are the latest rules for unsubscribes?
Many of the latest changes affect how your business must handle unsubscribe requests.
You must remove email addresses within ten days of the request. You cannot require individuals to do more than either 1) sending a single reply email message or 2) visiting a single web-page to unsubscribe. For example, you can’t require them to log in and then go to a separate page to unsubscribe.
You cannot require them to provide information other than their email address and opt-out preferences. For example, you cannot require them to provide an account number, password, or name to unsubscribe. And you cannot require recipients to pay a fee to remove their names from your mailing list.
Some health clubs use “preference centers” where subscribers log in to indicate their email preferences. For example, they may opt-in to your “Active Over 50” and “Eat Well, Live Well” emails, but opt-out of your “News and Happenings at the Southwest Club” emails. These preference centers usually require a log-in name and password to make changes. That’s a no-no under the new rules. You cannot require anything more than the reader’s email on a single page to unsubscribe them from your e-mails.
Some health clubs deliberately complicate the unsubscribe process, hoping that people will give up before completing the request. Dumb, right? If people don’t want to hear from you, how will coercing them into continuing to receive your emails benefit your business?
Requiring that they complete a “before you go” survey or a multi-page opt-out process is clearly not in compliance. It’s OK to ask for feedback on the same page where they opt out of your email mailing list – but you can’t require that they provide feedback in order to unsubscribe.
You must maintain a do-not-email list of people who have told you that they do not wish to receive your marketing emails. If you rent email names (a practice you should generally avoid), you must remove names from the rented list if they are already on your do-not-email list. You may not share the address of someone who has opted-out from your list with another business.
Are there rules about what we say in our emails?
Yes. First, the “sender” information must always be accurate.
Second, the subject line must state the purpose of the communication clearly. It cannot be misleading or misrepresent the content of the email. For example, an email subject line that says “Well???” and advertises health club memberships is probably in violation of CAN-SPAM.
If you send unsolicited email advertisements (for example, to a rented list), CAN-SPAM requires that your email state that it is an advertisement.
CAN-SPAM does not require that you add “ADV” to the subject line. However, some states do require this and apply other more stringent rules for unsolicited commercial email.
Third, your email must include a valid physical postal address. This address may be a street address, a box at a post office, or a box rented through services like The UPS Store or Mailboxes Etc.
Other issues:
Do you reward readers who forward your emails to friends? If you offer an incentive for readers to forward your email through your email marketing system, you must check the new recipient’s address against your do-not-email list before forwarding it. The forwarded email must retain an unsubscribe link, and the sender’s name should be yours, not the individual reader who’s forwarding the email.
Of course, these rules don’t apply if readers independently choose to forward your emails to others.
And note that if your health club or fitness center is one of several advertisers participating in a single email, the rules get more complicated. This situation often arises if you participate in affiliate marketing programs or products sold through network marketing.
Do these rules apply to order confirmation emails?
“Transactional emails” used to complete or confirm an agreed-upon transaction generally do not have to meet CAN-SPAM requirements described below – unless they also contain promotional messages.
Say you send transactional emails to confirm order receipt and shipping when your members buy nutritional supplements from your club. Or you may send an email confirming registration for a class or workshop.
These emails would not normally need to include CAN-SPAM requirements like an unsubscribe link and physical address. However, if a substantial portion of the email is promotional, you’ll need to comply with CAN-SPAM.
What about our health club newsletter?
Most wellness newsletters include a blend of information and promotional content. Your best bet is to treat your newsletters just like promotional emails. Apply the same rules we describe above and only send your newsletter to individuals who have opted-in.
Protecting Your Business
Feeling overwhelmed? When it comes to anti-spam rules, the devil’s in the details.
We recommend that most health clubs and fitness centers use an email marketing service-provider like Constant Contact, MailChimp, or another established reputable provider that has a satisfactory record with the Better Business Bureau. These providers constantly monitor regulatory developments, and their systems are designed to meet CAN-SPAM requirements.
