According to Wikipedia, the CAN-SPAM Act of 2003 which was signed into law by President George W. Bush on December 16, 2003 established the United States’ first national standards for the sending of commercial e-mail and requires the Federal Trade Commission (FTC) to enforce its provisions. The acronym CAN-SPAM derives from the bill’s full name: Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003.

CAN-SPAM defines a “commercial electronic mail message” as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” It exempts “transactional or relationship messages.” The FTC issued final rules[3] (16 C.F.R. 316) clarifying the phrase “primary purpose” on December 16, 2004. Previous state laws had used bulk (a number threshold), content (commercial), or unsolicited to define spam.

Commercial by many industry standards is defined by a combination of the content in the subject line and “above the fold content” in the body of the message. If this content contains a solicitation and it can be determined that the majority of the content is selling something- it is a commercial offer.

If the subject line and body content are majority invoicing information, a sales receipt, account information, etc. the offer is considered transactional. Note that an offer or advertisement can be placed in a transactional message so long as it is placed in a non-prominent position. Many in the email marketing industry utilize the 80/20 rule to define commercial vs. transactional email in order to be clearly in either category.

The bill permits e-mail marketers to send unsolicited commercial e-mail as long as it adheres to 3 basic types of compliance defined in the CAN-SPAM Act: unsubscribe, content and sending behavior compliance:

Unsubscribe Compliance.

• A visible and operable unsubscribe mechanism is present in all emails.
• Consumer opt-out requests are honored within 10 days.
• Opt-out lists also known as suppression lists are only used for compliance purposes.

Content Compliance.

• Accurate from lines (including “friendly froms”)
• Relevant subject lines (relative to offer in body content and not deceptive)
• A legitimate physical address of the publisher and/or advertiser is present.
• A label is present if the content is adult.

Sending Behavior Compliance.

• A message can not be sent through an open relay.
• A message can not be sent to a harvested email address.
• A message can not contain a false header.

In the past couple of weeks, the CAN-SPAM law underwent some key changes according to Vertical Response (my preferred email service provider!) as extracted from their blog:

1) POSTAL ADDRESS – Valid Physical Address can include a PO box or Mail Stop, as long as the USPS recognizes it. This might be an obvious one but it used to be a gray area, now it’s not.

2) PERSON is now defined not just as a human, it can also be a corporation, non-profit, etc. This is who is responsible for CAN-SPAM compliance when sending a commercial email. So business entities, as well as regular folks are now responsible for CAN-SPAM compliance in regards to all commercial email they send.

3) DESIGNATED SENDER RULE – This applies to you if you include any advertising or partners in an email. If you don’t include your company name “in the email” with a link to access your site, your advertisers are responsible for CAN-SPAM compliance even if your name is in the From Label. This mainly applies to companies who send coupons or offers on behalf their partners.

For example: Company A sends an email to their list with a special offer from Company B. In the email, Company A must have some information that advertises their own service, and some way for the recipients to access their site.

If Company A does not include some kind of ad for their own company inside the email, then Company B being advertised within the email would be responsible for all CAN-SPAM compliance.

IMPORTANT NOTE: If you’re advertising in another company’s email marketing campaign, make sure they put something about their services with a link to their site. You don’t want to be on the hook for their CAN-SPAM compliance.

Also, CAN SPAM states (again) that all commercial emails:

• Must have a working reply-to address or other web based opt-out mechanism (which must also be conspicuous) for the company listed in the From Label.
• Can’t be false or misleading.
• Can have no deceptive subject lines.
• Must comply with the SEXUALLY EXPLICIT label

4) UNSUBSCRIBE – Unsubscribes must not be complicated, nor can it require some kind of purchase, or taking a survey. The only thing you are allowed to ask for in an unsubscribe is an email address and the user’s email preferences.