Email marketing regulations for US [2023]

In the United States, the primary legislation that addresses email marketing regulations is the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing). 

Here, we will explore the key aspects of the CAN-SPAM Act, providing your business with the information needed to navigate email marketing regulations in the United States.

The CAN-SPAM act and its role in email marketing

When sending marketing emails in the United States, or dealing with the US as an international marketer, certain content requirements must be met. These include a valid postal address, reflective subject line and clear commercial nature. If businesses do not have prior consent to contact the recipient, it must also be explicitly stated that the message is commercial in nature.

Challenges of The CAN-SPAM Act

One of the biggest challenges of the CAN-SPAM act, as even the FTC admits, is understanding the difference between promotional and transactional emails, or relationship-building content. It’s a tricky area to navigate and the lines are often blurred, making it even harder for dual-purpose emails. 

Opt-out requests

Unlike many other email marketing regulations, the CAN-SPAM Act operates on an opt-out basis. This means that there is no requirement for explicit consent to contact subscribers in the United States. However, it is crucial to provide a clear and visible way for recipients to opt-out of future emails. Any opt-out requests must be honoured promptly, within ten business days.

🔒 It is worth noting that certain email service providers may have their own consent requirements. Before sending emails without prior consent, it is advisable to check the policies of your email service provider, as they may require consent from subscribers.

State-by-state variations

Email marketing regulations can vary on a state-by-state basis in the United States. This means that the applicable regulations may depend on the state where your subscribers reside. For example, in California, the California Consumer Privacy Act (CCPA) may have additional requirements and enforcement. For businesses operating nationwide, it’s critical that these individual requirements are met to avoid any legal issues. 

Penalties

The CAN-SPAM Act is usually enforced by the Federal Trade Commission (FTC). But other federal agencies, such as the Federal Communications Commission (FCC), state attorneys general and Internet Service Providers (ISPs), can also enforce the act in some cases.

The FTC can seek civil email marketing penalties of up to $16,000 per violation, with no maximum penalty. It is also important to note that there is no private right of action under the CAN-SPAM Act.

In conclusion

Understanding the regulations surrounding email marketing is crucial for businesses operating in the United States. The CAN-SPAM Act provides a framework for email marketing practices, including content requirements, consent and opt-out provisions. By adhering to these regulations, businesses can ensure compliance and maintain a respectful and effective approach to email marketing. But it’s also important to stay informed about state-specific requirements and be mindful of the penalties that can be imposed for violations.