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Cold Email Marketing or SPAM? – 7 Steps to Avoid Trouble

Online Legal Translations > Blog  > Cold Email Marketing or SPAM? – 7 Steps to Avoid Trouble

Cold Email Marketing or SPAM? – 7 Steps to Avoid Trouble

What are the Rules for Cold Emailing?

Let’s talk about “Cold Emailing”—that is, emailing potential customers with whom you do not have an existing business relationship or potential customers who have not specifically consented to being contacted by you, by signing up for your blog, newsletter, etc.

Is cold emailing illegal? No, it is not illegal per se, but there are specific rules that one must follow in order for a cold email message to be legal in the United States.

DISCLAIMER: In this article, I am not providing legal advice, participating in any legal representation nor relationship. This blog post/article is not a substitute for an attorney, a law firm nor any other advice. If you have any questions of a legal nature, you should seek appropriate advice from a licensed attorney in your jurisdiction.

This post will address the FTC’s stance on unsolicited emails in the United States.  Our discussion here will focus on the CAN-SPAM Act, however there are similar rules in most other countries and, especially with the imminent implementation of GDPR, the anti-spam laws applicable to most other countries are even more stringent than those of the Unites States.

Additionally, commercial regulations in the US are usually more strict for business-to-consumer communications than they are for business-to-business communication.  This article assumes you are targeting businesses rather than individual consumers via your email campaigns.

The CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography And Marketing Act) was signed into law by President George W. Bush in 2003, and was designed to cut back on unwanted commercial email.

The CAN-SPAM Act is mainly enforced by the U.S. Federal Trade Commission (FTC) which has not been shy about imposing substantial fines on violators. The per-email fine is currently in excess of $40,000.  Check out this recent example of a company fined $500,000 by the FTC for violating certain provisions of the Act.

Who is subject to the CAN-SPAM Act?

You do not have to be a huge corporation to be subject to costly complaints. There exists a veritable cottage industry whereby individual strong-arm companies into settling for $2,000-3000 at a time in order to avoid FTC complaints and litigation.  These opportunistic and greedy individuals sign up for, then unsubscribe from mailing lists and newsletters.  If the target company is just one day past the ten-day period allowed to process unsubscribe requests, these unsavory tricksters start sending demand letters.   Large bureaucratic companies’ administration can move at a glacial pace and, as for small companies, one can imagine if the IT person were out sick for a week. This can and does happen, so stick to the rules and you will lower your risk.

How to Avoid Spam Trouble with the FTC

The good news is: there are steps you can take to avoid violating the CAN-SPAM Act.  The FTC provides plenty of easy-to-understand guides, bulletins and even videos, to help business people effectively market to potential customers without violating the CAN SPAM Act.

As with most marketing activities, and indeed in life in general, you can approach avoiding spam trouble with a mindset of:

True = Good

Not true = Bad 

7 Steps to Compliance with the CAN-SPAM Act

However, there are also a few affirmative steps you need to take if you are engaging in email marketing, so even if your ethical compass is pointing squarely in the right direction, do read on.

Here are the 7 steps you can take to avoid trouble with Spam:

  1. Do not use fake or misleading headers. 

In the “To:” and “From:” fields, do not use anything misleading such as “PayPal Account Services,” for example, unless of course, you ARE from PayPal Account Services. 

  1. Do not use fake or deceptive subject lines.

This is pretty simple. Don’t use shady tactics to trick potential clients into opening their email.  You know the types of subject lines:

     “Your order has shipped”

     “How the heck have you been?”

or the endless fake Apple, Amazon and eBay “Please verify your account” subject lines.

  1. Clearly and conspicuously identify your email message as advertising.

Before the enactment of the CAN-SPAM Act, some forward-thinking individual states required, at minimum, the abbreviation “Adv.” in the subject lines of cold emails, but the CAN-SPAM Act did away with that requirement and instead states that the message must contain “clear and conspicuous identification” as advertising.

This requirement can be a bit tricky, however.  A good rule of thumb is to ask yourself what would suffice for a reasonable person to understand that your email is advertising, and then make it a little bit more obvious than that.  You can have fun with the wording of these requirements, and gain trust from your potential clients by coming right out and enthusiastically acknowledging that your email is advertising. Just make sure this disclosure is clear and conspicuous.  For example, you could make sure that the text of this information is no smaller than the average text size of the overall email. You could also make sure that the color of the font is easily distinguished from the rest of the text, not grayed-out, etc.  There is no specific rule regarding exactly what constitutes “clear and conspicuous” identification as advertising, but the FTC provides additional guidance on the general topic of the “clear and conspicuous” standard in digital advertising.

  1. Include a legitimate postal address.

It is a good idea to place your address at the bottom of your email, near your web address, email address and social media links.  It not only complies with the law, but it looks polished, professional and is another good way to market your business.  Proudly show who you are and how you can be contacted.  This is a perfect marketing opportunity and will show that you are a bona fide business, with a great product/service and not a spammer nor a scammer. If you do not keep an office outside of your personal home, you can obtain a PO box  or a mail service to avoid sharing your personal home address publicly on the internet and avoid being paper-spammed yourself.

      5. Include a conspicuous unsubscribe mechanism.

Make sure the unsubscribe section of your email exists and that it is clear and conspicuous (that phrase again). Also, make it as easy as possible for a reader to unsubscribe.  Don’t make potential clients click though 7 screens and fill out a form requiring them to type their email and explain why they are unsubscribing.  This is not a great way to establish credibility, it can hurt your brand’s reputation and it certainly invites complaints to the FTC. A one-click unsubscribe with a pop-up confirmation is ideal.  A potential client may not want your emails, but they now know who you are, and they may use your services one day, so providing a respectful and simple unsubscribe process can retain some of those leads as future clients.

      6.  HONOR unsubscribe requests.

This is very difficult to do without some type of automation. It is highly recommended to use a well-established, reputable and time-tested service such as MailChimp, Constant Contact etc.  Email campaigns are these companies’ specialty and they have the resources to make sure they are done correctly. However, YOU are ultimately responsible for your email campaigns, regardless of which company you hire to assist you.

     7. Monitor what others do on your behalf.

Make sure the service you choose use is legitimate, established and has a good reputation for compliance with the CAN-SPAM Act because, again, YOU will ultimately be responsible if the service provider violates the act. Take a look at their contract.  Despite the fact that these companies work very hard to maintain compliance and have every incentive not to violate the Act, it is likely that their standard agreement limits or disclaims their own responsibility for such violations.  If you believe there has been a violation of the CAN-SPAM Act, contact your provider immediatley.

So, to recap, in order to assure compliance with the CAN-SPAM Act in your US-targeted Cold Email campaign, follow the above steps and always, always be honest and professional.

 

 

 

 

 

 

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