One of our US clients inquired with us about an email they were about to send. Their email promoted one or more third party advertisers and they wanted to know what if any special handling they needed to do to stay in compliance with CANSPAM. While we can not offer legal advice, and any questions like this should be vetted with your own legal team, we thought we would pass along the guidelines our legal team recommends we follow internally.
If you are sending an email that promotes one or more third-party advertisers, or promotes a third-party advertiser as well as yourself, you should ensure that you (not your advertiser) is listed in the 'From' line, the email includes a promotional plug for your own website or services, and only your opt-out information is included in the footer of the email. In this situation, you will be considered the sole sender of the email and will only need to adhere to your own opt-out list (i.e., it won't need to also "scrub" against the opt-out lists of the advertisers who are also promoted in the email, and won't need to share opt-outs with any advertiser).
The CAN-SPAM Act defines a “sender” to include any person or entity who “initiates” a commercial email message (which is defined as procuring the origination or transmission of such message) and whose product, service or Internet website is advertised or promoted by the message. After the Act was signed into law, the FTC clarified that there could be multiple senders of an email message where the email message serves as an advertisement for, or promotes the products or services of, more than one party. This created compliance difficulties for marketers who routinely advertised another party’s goods or services in the same email(s) in which their own products and services were advertised (i.e., as part of joint marketing arrangements), because the presence of third-party advertisements meant that the email arguably needed to include an opt-out mechanism and a postal address for each advertiser to be lawful under the Act.
However, on May 12, 2008, the FTC issued revised rules that clarified that, when more than one company’s products, services or website are advertised or promoted in a single email message, only the company that is identified in the “from” line of the email message will be deemed to be the “sender” of the message so long as: (a) that company initiates or procures the origination or transmission of the message and advertises its own product, service or website in the message; (b) that company is the only party identified in the “from” line of the email message; and (c) that company complies with the Act’s requirements (i.e., it does not falsify any header information or use deceptive subject lines, it includes a functioning opt-out mechanism and its physical address in the emails, and it honors opt-out requests within 10 days of receipt). Assuming the above requirements are satisfied, only the single “sender” of the message will be required to include its physical address and an opt-out mechanism in the email message and honor opt-out requests made in response to the message, thus alleviating the redundant opt-out obligations that advertisers in joint marketing arrangements previously faced. Moreover, it will not be necessary for the single, designated sender of a joint advertising message to purge the address list against the opt-out files maintained by the other advertisers.
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