Amidst declarations of its death as a viable option, Email marketing continues to outperform other forms of digital marketing. In fact, studies have shown that email marketing is the most cost-effective option amongst other internet marketing tactics, with an average ROI of 122%.
The standout performer of all email marketing methods is the Newsletter. If done right, a regular newsletter builds trust, maintains relationships, generates leads, and promotes growth in revenue.
If done wrong, however, it could end up costing your business thousands of dollars and the loss of current and potential clients — and possibly even a prison sentence. In order to properly launch, distribute, and maintain an email newsletter, there are several laws and regulations you must adhere to.
So are your newsletters compliant with these federal laws and regulations, or are you risking thousands of dollars by omitting a key component?
Don’t Start Building a Mailing List Without a Privacy Policy
Before you send anything, you will need to build a mailing list. How you do this is a topic for another time, but regardless of the method, you’re going to have to collect and store the email addresses of your users.
Email addresses, among other things, are considered personal information under state and federal laws.
If you collect this kind of personal information from your users, you are required by law to post a privacy policy on your website that outlines how and why you collect this information. It must also describe in detail how you will use and share that information. This privacy policy must be posted in a conspicuous location on your website before any email addresses — or any other personal data — are collected.
Failure to post a privacy policy could result in a violation of the Federal Trade Commission’s Gramm-Leach-Bliley Act, California’s Online Privacy Protection Act, the Children’s Online Privacy Protection Act, and/or the European Union’s ePrivacy Directive. A single violation of any one of these laws — meaning the collection of just one piece of one user’s personal information — could result in a fine of tens of thousands of dollars.
Before you even consider collecting personal information from your users, make sure you have a legally compliant privacy policy in place.
Your Newsletter Must Adhere to These 7 Tenants
You’ve got an adequately populated mailing list and a comprehensive privacy policy in place. The hard part is over, and you can just send your readers whatever you want, right? Wrong.
In 2003, the United States congress passed the Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act, which effectively requires all marketing emails — including newsletters — to comply with 7 main tenants. Failure to do so could results in steep fines, probation, and even prison.
- Identify Yourself in the Header
The header of your email is the first thing recipients will see. It includes the “from”, “to”, and “reply-to” lines, in addition to the origin domain information and email addresses.
CAN-SPAM stipulates that your header information must be clear and accurate. You and/or your business must be clearly identifiable by these first few lines alone.
- Write Clear and Accurate Subject Lines
The subject line of your email is extremely important from a marketing perspective, as it likely determines whether the recipient will even open the email. It needs to be worded in such a way that makes viewers want to open the email and check out its content.
The subject line is important from a legal perspective, as well. According to CAN-SPAM, your subject line must accurately reflect the contents of your newsletter. This is also a stipulation of Canada’s Anti-Spam Legislation (CASL).
If the readers of your newsletter reside in the US or Canada, it is imperative that you provide a clear subject line that gives them a good indication of what’s inside the email.
- State Your Intentions Conspicuously
The most fundamental facet of both CAN-SPAM and CASL is transparency — businesses are required to identify their emails and newsletters as advertisements.
The laws are (intentionally) vague regarding how, where, and when to do so, but they are both clear that is required. If your newsletter contains advertisements in any way or form — which is almost always the case — you must disclose early and conspicuously within the email that it is an ad.
This disclosure should be made as early as possible — meaning the closer to the top of the email, the better.
- Include Your Physical Address
Your business has an official location, and according to US and Canadian federal laws, the recipients of any emails you send have the right to know that location. Your newsletter must disclose your location or the location of your business with a valid, physical postal address.
This address can be an actual street address, a post office box you’ve registered in your name, or a private mailbox that you’ve registered according to United States Postal Service regulations.
- Provide an Unsubscribe Option
Although they have most likely subscribed willingly to your newsletter — if they haven’t, you are most likely in violation of CASL — its recipients may change their minds at some point and decide they want to stop receiving it. You are legally obliged to provide a way for them to opt out of your newsletter in a way that is easy to read, recognize, and understand.
This component is often found at the bottom of a newsletter, and is an extension of a company’s disclaimer. A comprehensive disclaimer will address the issue of newsletters and other kinds of email — and inform users that participation in such communication is optional.
Trello, a web-based project management application, periodically sends out a newsletter to its users. At the bottom of every email is an unsubscribe button. It is clear, conspicuous, and can be understood by the average person.
In addition to the visibility requirements, the opt-out feature must also contain a link to a return email address or website, or some other internet-based way that allows newsletter recipients to communicate with you.
Make sure that unsubscribe requests aren’t blocked by your spam filters or privacy settings.
Some unsubscribe buttons may take you to a menu that asks you to choose which types of communication you wish to opt out of, and perhaps also the reasons why you wish to do so. This is acceptable, as long as recipients are also given the option to opt out of all commercial messages entirely.
- Honor Unsubscribe Requests
Invariably, you will get some unsubscribe requests from the recipients of your newsletters. It will happen regardless of how great and compelling your newsletter is. As such, it is important — and legally required — to provide an unsubscribe mechanism that stays active for at least 30 days after the email is sent.
You are also required to honor and complete unsubscribe requests within 10 business days of the request. It is illegal to make recipients jump through hoops to opt out of your newsletters — that is, you cannot charge a fee, require recipients to provide personal information, or make them take any additional steps other than visiting a website or sending an email.
Once a recipient has chosen to opt out of receiving your messages, you cannot sell, transfer, or share their email addresses in any way.
- Mind Your Third Party Partners
There are countless email marketing clients out there, many of which can be very useful. There are also marketing firms that specialize in handling the email marketing campaigns of other companies.
These solutions can save a lot of time and be very beneficial to your organization, but despite the fact that they handle all of your newsletters and their content, you are still legally responsible for their compliance with federal regulations.
In the event that your newsletters are reported to the FTC for having violated CAN-SPAM, it will be you that is charged and fined — not the company that handles your emails on your behalf. It is your responsibility to monitor what is done on your behalf, and ensure that your newsletters stay compliant.
Final Thoughts
Although CAN-SPAM and CASL have been criticized for being toothless and ineffective at stopping spam, many businesses and individuals have been charged and sentenced for violations of these laws. They are still very much being enforced, and if you don’t comply, your online business could be next in line to be punished.
Most email marketing clients — such as MailChimp, AWeber, and ActiveCampaign — insist on compliance with applicable laws, and will require you to take action if necessary components are missing. However, the onus — and the liability — is still on you.
Ultimately, whether you write your own, use an email marketing client, or employ a marketing firm, ensuring that your newsletters are legally compliant and up to code is your own responsibility — and failure to do so could cost you dearly.
