In this episode of Not So Risky Business, we dive deep into the legal requirements and best practices for email marketing, covering essential regulations such as the CAN-SPAM Act, FTC advertising and marketing guidelines, and more. Don’t miss this crucial discussion to protect your online business from potential pitfalls and ensure compliance with the law!
Here are the talking points for this episode:
- Introduction and welcome
- Importance of email marketing
- CAN-SPAM Act
- Opt-out requirements
- Wireless device opt-in requirements
- CAN-SPAM Act: A Compliance Guide for Business (FTC)
- Advertising and Marketing on the Internet: Rules of the Road
- GDPR Compliance for Email Marketing: [Link]
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Episode 4- Email Marketing Done Legally
[00:00:00] Mariam Tsaturyan: You are listening to Not So Risky Business podcast where we make legal easy for you by unlocking access to essential legal information, training and strategy for online businesses, coaches and entrepreneurs. I'm your host, Mariam Tsaturyan. Welcome.
[00:00:25] Mariam Tsaturyan: I love email marketing. For me, email marketing to this day is still one of the best and the top ways of communicating with my consumers, with my clients, with my potential clients and just communicating with my followers, letting them know what's going on in my life and so on. So I, as you can tell, I'm a huge proponent of email marketing. However it is important to know that email marketing comes with certain [00:01:00] regulations and laws that you should comply with in order to do it correctly.
[00:01:05] Mariam Tsaturyan: There are some requirements that you need to satisfy when you're doing email marketing and today's episode is going to cover that as best as possible so that you can walk away knowing exactly what to do. And more importantly, what not to do when it comes to email marketing. So you can do it a lot longer because you're not violating any rules.
[00:01:27] Mariam Tsaturyan: In order to do email marketing correctly, you have to comply with several regulations. The major ones that we're going to discuss today are CAN- Spam Act, the FTC or the federal trade commission and F C C. Okay. So let's start from the very beginning.
[00:01:46] Mariam Tsaturyan: For spam act requirements, which are, which is basically the major piece of regulation in a United States, that monitors and regulates email marketing behavior. It is [00:02:00] important to comply with several steps in order to be compliant. One of the very first things that you need to do in order to be CAN-SPAM act compliant, is to establish a company, do not email database.
[00:02:17] Mariam Tsaturyan: What does this mean? It means that if you have however many ways your customers or potential customers or followers in general, however many ways you have for those people to tell you not to email them. For example, maybe you have an unsubscribe link. Maybe you give them the option to call you depending on the type of business you are. Maybe they email you back and they tell you not to email them. Maybe they text you and tell you not to email them and so on. So whatever methods there are for people to tell you not to email them. You want to make sure all of this come together in one, a single database for [00:03:00] do not email purposes.
[00:03:02] Mariam Tsaturyan: Meaning, if you're sending an email out, you absolutely must be able to select that. Do not email database, whether it's a list, it's a segment. It will depend on your email marketing service that you use. And exclude that particular database from receiving emails. You are not allowed to send emails to people who have told you not to email them.
[00:03:28] Mariam Tsaturyan: And you need to honor that request. So establish one single database to make things less messy. If you're using, for example, an email marketing service that uses tags system, and maybe you have lists inside, for example, with something like active campaign. You can have tags and you can have lists.
[00:03:50] Mariam Tsaturyan: Make sure you either create a segment or list or just use one particular tag to be able to efficiently [00:04:00] exclude the people with that particular tag or in a particular list or segment from receiving your emails. So that is up to you, how you make that happen. Because again, it will depend on each individual email marketing service for you to figure out how to do that, but the point is create one database one uniform database where every single person goes whenever they tell you not to email them. Now. The other piece of CAN-SPAM Act regulation is that you need to create an opt out mechanism. What does this mean?
[00:04:40] Mariam Tsaturyan: So an opt out. Make it as a means, people, your consumers, followers, creators, whoever they are. They need to be able to opt out of your emails easily. Without jumping through hoops without having to pay without incurring any kind of costs. And [00:05:00] without having to go through multiple windows to do this simple thing.
[00:05:05] Mariam Tsaturyan: Now an opt-out mechanism can be a simple, if you don't want to receive emails, just reply back and tell me, stop emailing. Or you might have a link or a button at the end of your email that they click on and it takes them to another webpage where they can select from existing options- do not email me or unsubscribe me. Now it's important to note that yes, while you can and you should give them the option of unsubscribing from specific lists, for example, maybe you have a marketing list separately. Maybe you have an affiliate list separately and whatnot. But you have to have an unsubscribe option from an entire list. Meaning they can choose to unsubscribe from specific segments of your email marketing [00:06:00] activities. Like maybe somebody chooses to only receive your newsletters, but they opt out from receiving marketing emails.
[00:06:08] Mariam Tsaturyan: That's fine if they want to do that, however, you have to give them the option and ability to opt out of receiving emails from you all together. So the option to unsubscribe them from everything needs to be present. If it's not present this already counts as a violation for CAN-SPAM purposes.
[00:06:27] Mariam Tsaturyan: Now aside from providing them with this opt-out mechanism you should have a process for honoring these opt-out requests. As we've mentioned in the beginning, that one single database where every single person goes to, if they tell you not to email them, you should have a process for honoring their requests. This means if they asked you not to email them, that's it. You cannot break this rule and email them again, no matter what the reason is. The only way [00:07:00] you can email the people who have opted out is if they explicitly opt back in. They give you permission again by taking some kind of action on their part to be placed back in your list. This is the only way you can email anybody who has asked to be opted out.
[00:07:23] Mariam Tsaturyan: Now, this is important to remember because United States is a jurisdiction. Where we have opt out rights, not opt in. This means technically you're free to email people. Yes. Even marketing and advertising emails as long as you follow certain guidelines, if they didn't specifically opt in, but the moment they opt out, that is where you draw the line. That is where you stop.
[00:07:52] Mariam Tsaturyan: So let's keep that in mind. Now the other part of CAN-SPAM regulations, right? We need to [00:08:00] make sure that the mailing list that you have at the moment, the one that you're using, whenever you're sending out your newsletters, whenever you're sending out your marketing emails is actually CAN-SPAM compliant mailing list.
[00:08:13] Mariam Tsaturyan: These are very similar kind of ideas and understandings, but CAN-SPAM compliant mailing list means you follow best practices. You do not include anybody who opted out on your mailing list. If you have never dealt with a business or person, meaning you have never had business dealings with them technically speaking, you are allowed to email them, but a CAN SPAM best practice is considered when you only create a mailing list that consists of people who have actually opted in, who actually gave you consent to email them, and other people and or [00:09:00] businesses out there with whom you've had business dealings at the very least.
[00:09:04] Mariam Tsaturyan: Now, this is a best practice. You can choose to follow this guidelines or not. But if you are going to email somebody with whom you've never dealt before, In other words, cold emailing, you need to follow certain protocols and procedures, and we'll cover that in a moment as well.
[00:09:23] Mariam Tsaturyan: We need to make sure that our email marketing messages meet can spam act requirements. CAN-SPAM itself has a lot of different things in it. For example when it comes to sending out messages under CAN-SPAM regulations, we need to be sure that we're not including any false or misleading Information. If there's anything inaccurate. We are not sending that out. If you're including a subject line that is meant to be deceptive, we are not sending [00:10:00] that out. If it's a clickbait we are not sending it out. Yes. You can be creative with your subject lines. You can be creative with your emails, but you cannot include misleading or inaccurate information. When it comes to inaccuracy, you need to know that it's inaccurate and you need to have done your due diligence to make sure that the information you're sending is not inaccurate.
[00:10:27] Mariam Tsaturyan: Now, of course, there's always a situation where you've done your best, but something ends up being, not the case. That's okay. As long as you can show that you've done your due diligence. If Your email is an ad, you need to identify that email as an ad.
[00:10:45] Mariam Tsaturyan: Now CAN-SPAM does not actually require that your subject line states an ad in it. And it doesn't even have a particular wording that you need to include. [00:11:00] If you're sending emails to only the recipients who have actually opted in, gave you permission, to send them emails. Then you do not need to worry about identifying the email as an ad.
[00:11:16] Mariam Tsaturyan: However, if you're sending cold emails to a random audience that you've never dealt with before, with whom you've had no business dealings before, then you need to somehow identify that email as an ad, that email as a promotion so that they know whether they should open it or not. This falls under the FTC advertising guidelines. You need to have clear and conspicuous disclosures in place.
[00:11:48] Mariam Tsaturyan: That we know we don't know each other. We haven't dealt with each other, but I am sending you this email and this email is meant to be an ad or it's meant to [00:12:00] be a promotional email to draw you in. However you want to go about that disclosure, that's up to you. But you need to include that in there. The only way you will avoid including this is if you're only sending emails to people who have opted in and gave you consent. Now your messages, your emails should also have your company location in there. It needs to be a valid and current physical postal address. Virtual mailboxes currently are not acceptable under CAN-SPAM regulations. I know this is a sore point with a lot of entrepreneurs and online business owners.
[00:12:44] Mariam Tsaturyan: There's some really attractive virtual addresses out there. Very cheap, affordable and easy because it actually hides your actual address. Nobody wants their home address to appear on their emails. But there is another option. [00:13:00] If you get a USPS, US postal service post office box that you've accurately registered with them, you can use that post office box address, but it needs to be a us postal service box. The other option is to have another post office box that is registered with a commercial mail receiving agency, but you need to make sure that this commercial mail receiving agency is established under USPS regulations.
[00:13:36] Mariam Tsaturyan: This is the tricky part. There are a lot of mail services out there, boxes out there. Some of them are compliant with USP S regulations and some aren't. So make sure to do your due diligence, best case scenario, if you don't want to use your home address, and if you don't actually have a business address, because maybe you're a [00:14:00] completely, online business, which is totally fine. Then you go and register a box with USP S the postal service. And use that box address. Okay. Now you need to have, as we've already touched on this, a very clear, easily visible, an opt out option, an unsubscribe option in your emails. I cannot possibly list the number of times I have seen from big businesses out there send emails to me and the unsubscribe link is in tiny letters that you could hardly see it, or they have used a very light color compared to the background that again makes it hardly visible. This is not proper CAN-SPAM compliance. Under CAN-SPAM, your unsubscribe link needs to be clearly visible. Somebody should not go looking through your email for [00:15:00] hours or minutes and minutes at a time to be able to locate your unsubscribe link or button. So make sure it's there. It's visible and it's easily readable take into account accessibility because if somebody needs to use screen readers, to actually scan your email. If you put it in very tiny fonts or very low contrast colors or similar to the background color, it's not going to get picked up by the screen reader. So accessibility is important in this case as well.
[00:15:31] Mariam Tsaturyan: The other CAN-SPAM requirements that we need to comply with, and this falls under can spam and it also falls under the FCC is the federal communications commission, right? We are not allowed to send emails to wireless devices. Ever. Unless we specifically have their consent.
[00:15:57] Mariam Tsaturyan: So with regular email [00:16:00] CAN-SPAM does not actually require for them to give you consent initially, in order for you to email those , as long as you honor, opt-outs. But, when it comes to wireless devices and sending email to wireless devices, you absolutely cannot send them emails, unless you have obtained there prior express consent. These are requirements and procedures under the FCC or the federal communications commission. And you need to make sure that you're complying with them. You need to obtain prior express consent before sending them anything. The consent needs to be obtained in the way that has no cost to the recipient. The recipient confirms that they agree to receive commercial emails on their wireless device, and [00:17:00] you need to tell this recipient that they may be charged if they receive emails, and you need to tell them very clearly they have the right to revoke consent at any time. So I'm sure, you have been subjected to either text messaging consent or the chats or anything that goes to your wireless devices straight.
[00:17:24] Mariam Tsaturyan: So with text messaging, you can simply text back the word stop, and any communication should stop after that point because you just revoked consent. Moreover, if you've never consented to receive those text messages, then those people violated the CAN-SPAM regulations and the wireless device regulations under the FCC. So be very aware of this point.
[00:17:54] Mariam Tsaturyan: Make sure you honor this request. If somebody doesn't want you to email them on a wireless device, [00:18:00] honor that. Moreover do not email them in the first place unless you have obtained their express consent previously.
[00:18:08] Mariam Tsaturyan: Another important point under the CAN-SPAM regulations are the third party vendors who sell you email lists. Meaning you as a business, go to this third party vendors and purchase list comprising of many different email addresses to use as a potential customer base for your email for your business and then you start emailing them.
[00:18:32] Mariam Tsaturyan: There are some problems with doing this. First and foremost as a good practice, I would never recommend purchasing email lists. There's just no way for you to know, and for that other company to guarantee that they have complied with all the rules and regulations. However. If you do have to purchase an email list from a third-party vendor, then make sure [00:19:00] you're purchasing it from a reputable company.
[00:19:02] Mariam Tsaturyan: Make sure that they have. No opt out emails on there. Meaning if there's somebody who unsubscribed from the list, make sure that's not there. And this is where the problem begins because you don't know if this third party vendor was actually vigilant in making sure that all the opt-outs are separate, that they not getting emails that they're honoring it.
[00:19:27] Mariam Tsaturyan: But to the best of your ability, you need to make sure that they've scrubbed those emails from the list. Moreover, it's not just the opt-outs now that you need to worry about. It's also how those email addresses were obtained because we have a lot of data privacy and security laws that we need to comply with you. We need to make sure that if those email addresses come from outside of the United States, for example, we need to make sure that they were obtained in accordance with the laws of that [00:20:00] local country or area.
[00:20:02] Mariam Tsaturyan: We need to make sure that this email addresses were collected and they are either GDPR compliant or they're the Brazilian data privacy law compliant, and so on. So do your due diligence to make sure that this third party vendors are reputable but know that there's no way of guaranteeing that what you've acquired from them is completely legitimate.
[00:20:27] Mariam Tsaturyan: Lastly CAN SPAM regulations also have specific requirements when it comes to sending and receiving sexually oriented material. If the email you're sending out includes any kind of sexual, sexually oriented material in it, whether in text or images or graphics, you need to include the words SEXUALLY EXPLICIT in all caps as the [00:21:00] first 19 characters in the subject line. Once again, if your email has any sexually oriented material in it, make sure to include sexually explicit in all capital letters as the first 19 characters of the subject line itself. Generally speaking unsolicited, sexually oriented messages should not be sent as that presents more of a problem for spam purposes.
[00:21:28] Mariam Tsaturyan: However, even when somebody has given you consent to send that kind of information to them, You want to use the electronic equivalent of a brown paper wrapper in the body of the message, so that when the recipient opens the message. The screen only shows the words sexually explicit. There's some kind of a message that the email is an ad, meaning there's a disclosure that it's an ad. If you're sending it to somebody who didn't [00:22:00] explicitly give you consent to email them, your company address is there. And as we said, we want to ensure the brown paper wrapper. Meaning nobody will see any explicit graphics, images, or texts unless they take some affirmative action, meaning they have to scroll down to an area that's not visible on the immediate screen, or they have to click some kind of a link to take them to that image or graphic. So again, Brown paper wrapper policy. The email itself when opened, the way it looks should not have any explicit contents that is visible immediately. Any explicit content should be included in below the fold area where they have to affirmatively scroll down to see it, or there has to be a link for them to click and get to that [00:23:00] material. And don't forget your subject line needs to have that disclosure SEXUALLY EXPLICIT warning in place so that whoever receives that email, know what they're dealing with and can make a decision whether to actually see it or not, or if they want unsubscribe from receiving those kinds of emails.
[00:23:19] Mariam Tsaturyan: These are the major points when it comes to CAN-SPAM regulations and email marketing regulations.
[00:23:25] Mariam Tsaturyan: To repeat the main point, in the United States, we have a jurisdiction of opt out requests, whereas in some other countries they're dealing with opt in. What opt out means for us, it means that under CAN-SPAM laws. You are not prevented from emailing somebody who's not on your email list.
[00:23:46] Mariam Tsaturyan: Although it is highly suggested and recommended that you only email those who have given you actual consent and or with whom you've had business dealing with, if you're emailing to [00:24:00] someone from whom you have no consent and you haven't had any business dealings with this person or business, then your email needs to identify that what you're sending to them is an ad. What you're sending to them is a promotion to either buy from you or buy services from you. Or whatever it is that you're offering. So just keep those rules in mind.
[00:24:25] Mariam Tsaturyan: I hope that today's session was helpful for you. And I'm sure a lot of you do email marketing, if not all of you. And if you're not doing email marketing, get on it, start doing that because email marketing is amazing for your business. If you have any questions about email marketing and legal requirements, feel free to get in touch with me or ask more, follow up questions. And if I receive a lot of questions, I can also do a follow-up episode.
[00:24:50] Mariam Tsaturyan: I hope you enjoy today. Thank you for being with me.