Question

Topic: E-Marketing

Lawyer Hell! Can-spam's From: Requirements

Posted by johnb847 on 6/4/2008 at 6:09 PM ET 250 Points
We are starting to use email marketing more frequently. We rent 3rd party opt-in lists from reputable brokers who do this for a living. We then mail our creative to that list From: Us. It includes the CAN-SPAM required opt-outs, corporate address, etc.

We were doing just fine, but now our corporate lawyers are jumping in making unwavering demands. They insist that the new FTC ruling on CAN-SPAM says that the FROM: always has to be from the list owner. The list owner said no; they didn't want to be responsible for CAN-SPAM violations we might cause. Our lawyers agreed to From: List Owner on behalf of Us, but the list owner got spooked and turned that down. We are now at a stand-off.

Question: What is the current interpretation of the CAN-SPAM ruling regarding "FROM:." Best practices?

Thank you,
John Buckley
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RESPONSES

  • Posted on 6/4/2008 at 7:00 PM Accepted
    According to BtoB magazine:

    "The most significant change for b-to-b marketers out of the four updated provisions relates to the word “sender.” In the past, those who worked with affiliates, rented lists or advertised in other companies’ newsletters or e-mail marketing messages may have been confused about who was responsible for providing an opt-out link and removing e-mail addresses.

    Under the new provision, “sender” is now defined so that only one company or person—whoever initiated the message—is in charge of these functions. The company whose name or whose employee’s name is in the “from” field is responsible for providing an opt-out link and a physical address, and for removing opt-outs from lists. The sender 'controls the content of the message [and] determines the electronic mail addresses to which such message is sent.' "

    Full article is here:

    https://www.btobonline.com/apps/pbcs.dll/article?AID=/20080515/FREE/1013123...

    Official updated regs are here:

    https://www.ftc.gov/os/2008/05/R411008frn.pdf

    Hope this helps.
  • Posted by johnb847 on 6/4/2008 at 8:00 PM Author
    We have a significant list already. We are looking to expand our reach.

    We are talking to another list broker but I'm afraid the issue is with our legal team; I need ammo to overcome their concerns.
  • Posted by johnb847 on 6/4/2008 at 8:12 PM Author
    jkaplan,

    Thanks for the links. I had the one to the FTC site but the B2B article is new to me. I actually read big chunks of the FTC 109 page legal doc; fun!

    The "whoever initiated the message" part is what has people, especially me, confused. As the advertiser, aren't we initiating the message? The list owner is renting his (hopefully, fully opt-in) list. He's not sending anything. When Avis rents a car, they are not responsible when a renter blows through a toll booth without paying, the driver is. (Ask me how I know!) If its a matter of who is hitting "Send," that's the 3rd party email marketing company; should their name be in the "From:"? I don't think so.

    Thanks for your help, but I don't think I have the answer yet.
  • Posted on 6/5/2008 at 9:00 AM Accepted
    Hi John,

    I just read the sections again. I am NOT a lawyer, but it seems to me that the sender is the person/company in the "from" line. It looks like they were largely concerned with what happens if there are multiple advertisers in a single email, and selecting a designated sender from the group (to make life easier for everyone concerned). If you are still confused, you can try contacting Patricia Kachura at The DMA's Washington DC office at 202.955.5030. Or, there was a contact number in the FTC pdf, maybe you could get it "straight from the horse's mouth."

  • Posted by Jay Hamilton-Roth on 6/5/2008 at 9:40 AM Accepted
    Probably the best solution is to contact the FTC directly: Janis Kestenbaum (Staff at Bureau of Consumer Protection) 202-326-2798 to get clarification from the source.
  • Posted by Carrie Fricker on 6/5/2008 at 10:11 AM Accepted
    Too bad about your lawyer mess. Many a marketing campaign has been dashed by lawyer involvement!

    I did some research and found the below page which summarizes the recent FTC clarifications to the Can-Spam Act's position on "sender".

    https://blog.habeas.com/blog/habeas/0/0/ftc-issues-final-regs-for-can-spam-...

    As a list broker I've been doing email campaigns for years. The list owner typically requires that the mailer use their format for the From Line, whether it is the list renter's name or the list owner's name. It varies by list owner. At the end of the day, as long as your message is in compliance with the Can-Spam requirements, you should be safe using either entity in the From Line. And of course, be sure the list being rented is in compliance with all best practices. Good luck!
  • Posted by connect on 8/25/2011 at 6:41 AM Member
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    Legal consultation from Mumbai lawyer, Mumbai attorneys, Mumbai solicitors, Mumbai law firm Advocates & expert Civil lawyer Mumbai Criminal Lawyers Civil Corporate Litigation Family lawyers Mumbai Network provides online legal help, legal opinion, legal research in Mumbai
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