ComplianceComplianceComplianceCompliance

A Webinar Presented by

Total

What the Changes in CAN-SPAM Mean for YouWhat the Changes in CAN-SPAM Mean for You

Introductions…Introductions…Introductions…Introductions…

John EnglerVP & General Manager

Moderator:Moderator:

Justin B. WeissAssociate Counsel

Agenda…Agenda…Agenda…Agenda…

•Background & Context

•Key Issues Raised in the NPRM

•The Four New Points

•Additional Commentary

•Open Questions

Agenda…

Did YouDid YouDid YouDid YouKnow?Know?Know?Know?

of email marketers are unaware of the CAN-SPAM Act and its requirements?*

81%81%

BackgroundBackgroundBackgroundBackground& Context& Context& Context& Context

CAN-SPAM Act Passed

Adult Labeling Requirement

First Rule Issued

Notice of Proposed Rulemaking

Final Rule Issued

20042004 20052005 20062006 20072007 20082008

Final Rule In Effect

• Multi-advertiser messages• Covered entities vs. covered messages• Valid physical postal address• Shortening the period of time to honor unsubscribes from

10 to 3 days• Impairing consumer’s opt-out choices• Forward-to-a-Friend

Key IssuesKey IssuesKey IssuesKey IssuesOf the NPRMOf the NPRMOf the NPRMOf the NPRM

• Liability may attach to any “person,” including non-natural persons

• Individuals• Groups• Unincorporated associations• Limited or general partnerships• Corporations• Other business entities

The 4The 4The 4The 4New PointsNew PointsNew PointsNew Points

#1#1

The 4The 4The 4The 4New PointsNew PointsNew PointsNew Points

#2#2• Multiple advertisers (“senders”) in the same

message may designate one among them as a “designated sender”

• Must be a true “sender,” as defined in the Act• Must be the only one of these senders in the

“From” line• Must abide by all core compliance

requirements• May be the only unsubscribe link and valid

physical postal address

The 4The 4The 4The 4New PointsNew PointsNew PointsNew Points

#3#3• Cannot complicate the opt-out mechanism

• No fees

• No extraneous info beyond email address and unsubscribe preferences may be required

• Reply email

• Single-page web based opt out

The 4The 4The 4The 4New PointsNew PointsNew PointsNew Points

#4#4• Point 4: P.O. Boxes and Private Mailboxes okay

• Satisfies “valid physical postal address”

• Must be “accurately-registered” per USPS regulations

AdditionalAdditionalAdditionalAdditionalCommentaryCommentaryCommentaryCommentary

•Forward-to-a-Friend• If no “procurement” or “inducement” to forward,

then advertiser has not “initiated” the message and compliance is not required

• If procurement is found, then full compliance required, and prior opt-out requests must be honored (i.e. unsub list must be scrubbed first)

• Applies equally to automated mechanisms in the message, or traditional forward button in email client

AdditionalAdditionalAdditionalAdditionalCommentaryCommentaryCommentaryCommentary

• 10 day rule maintained• No safe harbor for “affiliate” messages• Most messages require “primary purpose analysis

• Legal• Debt collection• Copyright infringement and market research• Free services• Online groups / listservs• Negotiations, B2B• Associations and its members• Unsolicited newsletters• Prospective employee messages

OpenOpenOpenOpenQuestionsQuestionsQuestionsQuestions

• Designated sender implementation• “From lines”• How can list owners “advertise or promote”

themselves in the message so as to become the “designated sender”?

• Forward-to-a-Friend compliance• What counts as “inducement” in the

absence of consideration?• How to comply with CAN-SPAM when

consumer forwards using email client?

John Engler, john@unsubcentral.com

Justin B. Weiss, justin@digitalpolicygroup.com

Contact InformationContact Information

Thank You!Thank You!Thank You!Thank You!Questions?Questions?Questions?Questions?