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Warren Corpus is the VP of Business Development as well as the Compliance Officer for Vayan Marketing Group. He is often called the Dean of Delivery and the Count of Accountability.

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Email Marketing in the CAN-SPAM Era

Written on
February 15th 2006
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by Warren Corpus  |
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The Federal Trade Commission recently released their first assessment of the CAN-SPAM Act of 2003. The 2-year-old effort has given legitimate email marketers a set of guidelines to live by, detailing what should not be done when sending commercial email, such as using false header information, using open relays for transmission of email, and using deceptive or false subject lines. While a study by email security firm MX Logic found that only 4 percent of all commercial emails sent in 2005 are compliant with the CAN-SPAM Act, the FTC cites that overall spam levels have decreased. Also, compliance is high among legitimate marketers, and the amount of sexually explicit spam has dropped significantly.

As email marketers, the CAN-SPAM Act may have seemed like a huge burden back in early 2004. I recall implementing our new suppression procedures at my own company and thinking “We’ve got to scrub a suppression file against our data for every campaign? And we’ve got to download new suppression files every week?!” It sure seemed crazy at first — almost a big waste of time. I even remember telling myself that email as an advertising vehicle surely wouldn’t last with these crazy new laws in effect. But here we are two years later and these suppression procedures seem like old hat.

If email publishers thought the new suppression procedures seemed strange, imagine how advertisers must have felt. I’ve had some clients who seemed quite xenophobic when I informed them that they would have to keep a file of consumers’ email addresses who have opted out of their particular offer. This fear that advertisers were feeling sparked new service lines and even whole companies dedicated to managing suppression procedures.

Even the suppression companies caused some uneasiness in their own industry. There are two ways to remove opt-outs from your data: download a suppression file and scrub your lists yourself, or upload your lists to a scrubbing service who will remove records who have opted out. The first time I heard the latter from a client, I thought, “Upload MY data to YOUR site? Are you CRAZY?” Okay, perhaps I had some trust issues at the time.

As email publishers, we get pushed to run offers all day long. Sometimes I feel sorry for media buyers and affiliate managers who have to get on the horn and find publishers to run their offers. Publishers get harassed…er, contacted by networks, advertisers, and brokers with campaigns all day and night, via email, phone call, or instant message. What amazes me is that there are advertisers out there who are still hawking creatives that are not CAN-SPAM compliant. No postal addresses, no opt-out mechanism — asking advertisers to make their creatives compliant can stall the sales process by days, depending on the speed of their creative team. I have had to write CAN-SPAM verbiage for clients’ creatives more than a few times.

For those of you who run affiliate networks, the suppression headaches are compounded exponentially. Having to keep updated suppression files for all the offers on your networks can warrant hiring dedicated individuals for the process. For our affiliate network, we’ve found that we can keep suppression manageable if we make each sales representative responsible for his or her campaigns. Conversely, each affiliate manager is responsible for making sure his or her affiliates are sending compliant email. However, if you don’t have the resources or bandwidth to delegate suppression duties, policing individual affiliates can be a daunting task.

While CAN-SPAM gives our industry a greater level of legitimacy, some will agree that it has hurt their business at one time or another. There are times I have had to turn down business or cut ties with current partners because of non-compliance. How many times has an advertiser asked you to ignore suppression because of a problem extracting the opt-out list? For those networks out there, have you ever had to ban a publisher from your network because of repeated compliance violations? It’s tough to turn away business because of new laws, but it definitely needs to be done at times.

Compliance issues do not only occur on the federal level; there are state laws to consider also. Michigan and Utah both passed child protections laws in 2005. The states created registries for parents to register their children’s email addresses, and it is unlawful for marketers to send email advertisements that include content illegal for minors to possess or obtain access to. This made an immediate impact on the campaigns I was sending for a certain client of mine, including a cigar campaign and a wine offer. The industry saw some tobacco and beverage companies totally cease email marketing, if only temporarily.

A colleague recently asked me why I feel only 4 percent of all commercial emails in 2005 were compliant. It is true that such a low percent does not make it sound like the 2-year-old CAN-SPAM Act has had a major effect on our industry. One must step back and take a look at their inbox, or even better, their junk folder. A vast majority of the spam one finds in their email account is sent by shady outfits who are probably breaking laws above and beyond email compliance. Legitimate email marketers like ourselves have done a much better job following the federal guidelines. The FTC recently surveyed top “e-tailers” and found that 100% of the companies surveyed have opt-out verbiage (including postal address) and unsubscribe mechanisms on their email creatives. Additionally, 86% of those companies honored unsubscribe requests in the 10-business-day period.

It is our job as legitimate email marketers to distance ourselves from the low-brow practices that spammers use to get their shady messages across. The CAN-SPAM Act, while giving the government a legal framework to chase down spammers, also gave email marketers a guideline of best practices to follow. State laws, while difficult to follow and even sometimes interpret, will come and go. It is our responsibility to keep abreast of changes in both federal and state legislation so we may stay compliant and leave the legal fees and jail time to the spammers.



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Reader Comments.

Yea, it’s funny how all the email I see out there now says it’s compliant. But somehow they were able to get my email address that I’ve never used to sign up for anything.

Any email nowadays that’s getting any volume is just Spam and the advertisers that are on it dont care.

Posted by Pete | 4:27 pm on February 15, 2006.

I just wanted to add a few comments. First, CANSPAM is under reconsideration. Several changes could result that would further complicate compliance. A few of these are reducing the 10 day period to honor opt outs to 3 days, re-defining “sender” as it applies to multi-company campaigns, establishing a “safe harbor” standard similar to the DNC regulations. Additionally, several more states including Hawaii and Georgia are working to establish child protection databases. This would require any commercial advertisement for a product or service that a minor under 18 cannot purchase; i.e. mortgage, other financial services, alcohol, tobacco etc; to scrub against these databases. Since there is no way to determine what state an email address emanates from, national marketers would have to scrub all of their campaigns against these lists at an average cost of $7 per thousand! It will take some major enforcements before this requirement really garners attention. I believe the federal gov’t will be forced to step in as more states enact their own unique requirements. On top of that, AOL will soon begin charging to deliver commercial email to its members…other ISPs are considering the same thing. I see a bumpy road ahead for emailers if this trend doesn’t change.

Posted by Ken Sponsler | 9:13 am on February 16, 2006.

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