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Commercial email marketing poses private litigation risks and regulatory hurdles that should be considered before launching any campaign to ensure compliance. The Federal Trade Commission Act requires truthful and non-misleading advertising, and the Federal CAN-SPAM Act prohibits false or deceptive email headers (which are generally defined as the sending domain names and “from” lines) and subject lines, requires opt-out options, and mandates identification of commercial emails as advertising.

Under the FTC Act, the overall impression of the advertisement must not be misleading. Any claims made in the email must be supported with appropriate evidence, and if any of the claims require disclosures, they must always be clear and conspicuous.

Under the CAN-SPAM Act, although no prior consent is required to send marketing emails, organizations must not send emails to recipients who have opted out of said communications. Historically, litigation has focused on CAN-SPAM’s requirement that advertisers not use false or misleading header information, such as domain names and routing information, “from,” “to”, and “reply to” lines, or deceptive subject lines as to the content of the email. Nonetheless, commercial emails are also required to identify the message as an advertisement, include the advertiser’s postal address, and notify recipients about how to opt out of future communications.

CAN-SPAM was passed to establish nationwide uniformity for commercial advertisements in emails, states may regulate commercial emails with a narrow exception: laws that target material fraud or deception. In other words, if the law is not regulating traditionally tortious or wrongful conduct, the state may not regulate it.

Even so, various states have adopted email marketing laws or “anti-spam” statutes of their own. For example, California passed California Business and Professions Code § 17529.5. Certain requirements, such as the prohibition on commercial emails sent without consent, are preempted, but others are not. For example, Section 17529.5 prohibits e-mails containing third-party domain names used without permission, misrepresented header information, and misleading subject lines. Companies are experiencing an increase in lawsuits brought under California’s § 17529.5. Plaintiffs are alleging that the following practices violate Section 17529.5A: (1) any third party’s domain name appearing in any part of the routing information, such as the hidden, technical header; (2) header information that does not expressly identify the name of the sender; or (3) proxy registered domains.

Though California courts have curtailed some of these suits as preempted by CAN-SPAM, private plaintiffs continue to bring such actions. Violations are punishable by up to $1,000 per email. Similarly, plaintiffs are filing lawsuits under Washington’s email marketing statute, challenging any advertising claims made in email subject lines and seeking hundreds of thousands if not millions in penalties for these alleged violations.

Consider the following when engaging in email marketing:

• The email communication must clearly indicate if the email is for commercial purposes.
• The overall impression of claims made in the email must not be misleading, and all claims must be truthful and substantiated.
• Include the full business name, valid physical address, and opt-out mechanism.
• Promptly remove unsubscribers within 10 business days of their opt-out request.
• Use accurate business information when registering domain names.
• Use subject lines that accurately reflect the contents of the email.
• Do not use misleading sender names or false identities.
• Do not make false, unsubstantiated, or potentially misleading claims in the email body or subject line.

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