Email is ubiquitous in modern life with billions of emails – wanted and unwanted – sent each day.  Since its enactment in 2003, the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act has attempted to curb the number of unwanted emails and impose some rules on a largely unregulated frontier.  When followed, the CAN-SPAM Act’s restrictions give email recipients some control over their inboxes and also maintain fairness in how emails present themselves.  All businesses, start-ups included, can face penalties of up to $16,000 per violation for failure to follow the CAN-SPAM Act.

As a practical matter, many organizations use vendors for their email marketing and other email services, and those vendors often assist the organizations in complying with the requirements of the CAN-SPAM Act.  Nonetheless, the party whose content is promoted via email must supervise the conduct of its vendors and employees in abiding by CAN-SPAM, or else risk possible sanctions.

The basic questions to ask regarding CAN-SPAM compliance are:

1.                   Does your email message include: (a) complete and accurate transmission and header information; (b) a “From” line that identifies your business as the sender; (c) a “Subject” line that accurately describes your message; and (d) an effective “opt-out” mechanism?

2.                   Does your email either contain an email address, physical address, or other mechanism that the recipient may use for opting-out of future marketing emails?

3.                   Is your opt-out mechanism effective for at least 30 days after your email is sent?

4.                   Do you honor all requests to opt-out within 10 days?

5.                   Does your mailing list include any recipient that has asked not to receive email from your business (opted-out)?

6.                   Have you tested the effectiveness of your opt-out mechanism?

7.                   Have you reviewed your vendor contracts to determine each party’s responsibilities with regard to CAN-SPAM compliance?

8.                   Are addresses of people that have opted-out transferred outside of your organization?

9.                   Does your organization use open relays or open proxies to send marketing email?

10.                Have you validated your CAN-SPAM compliance program annually?

Like many areas, getting started on the right foot with email marketing is an important foundation for a start-ups business.