Last week, I got an urgent request: “Karen, we need a MailChimp expert to talk in court about how unsubscriptions work. Tomorrow.” Wow. I accepted the job. 

As many of you know, I’m certified by MailChimp, and a MailChimp Preferred Partner. From what I could gather in our short conversation, someone was using the federal CAN-SPAM Act, a set of rules about email marketing. I knew it could happen in theory, but I’ve never heard of this happening in real life before. It’s been hard for me to imagine that someone would actually sue because they received an unwelcome email.

So I reread the law and reviewed my training. I think it’s helpful for YOU, too, to know why Email Service Providers, that is “ESPs”, like MailChimp, Constant Contact, or Flodesk, are important. And you’ll see why it’s smart to have a competent person managing your emails.

The CAN-SPAM Act says that if you email someone for commercial purposes, and break any of several rules, you can be fined $46,517 per email. 

Here’s what the Federal Trade Commission (FTC) says you need to do to comply with the law. This is verbatim:

1. Don’t use false or misleading header information. Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.
2. Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
3. Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.
4. Tell recipients where you’re located. Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.
5. Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.
6. Honor opt-out requests promptly. Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.
7. Monitor what others are doing on your behalf. The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

Number six is where someone dropped the ball, triggering the court case. Someone verbally asked to stop getting emails. And then they got a marketing email anyway. 

With all email service providers, you can unsubscribe, archive and delete. All have different features and repercussions. I’m guessing that in this lawsuit, the recipient was manually unsubscribed. Which is the correct action. But if the company had poor list habits, maybe the recipient was on multiple lists. Or the sender could have deleted the recipient (which is definitely NOT the correct action), then imported, say, last quarter’s webinar attendee opt-ins, accidentally re-adding the recipient as a subscriber. So as you can see, it’s easy to break the CAN-SPAM rules.

Some mistakes are made when new lists are set up. Like having multiple lists with overlapping email addresses. Remember, never duplicate your email list to use it for other marketing. That’s misleading, and illegal. Someone must be able to unsubscribe an email address from a company’s marketing emails with one unsubscribe attempt.

or example, say I’m a baker who ships cookies. I start a new gluten-free line of cookies. I can’t copy my old mailing list to launch my gluten-free cookies. Think about it: if someone unsubscribes from the gluten-free emails, they’d still continue get my regular cookie emails. Which is illegal. All emails should use my mail (or, as MailChimp calls it, my main “audience.”)

This audience can be segmented, which increases open rates and sales, and I’ll write more on that in another post.

Also note that in California, and other localities, it’s illegal to sell your mailing list (unless it’s part of buying a whole company.) Additionally, you should know that the rules and penalties are much more severe in the EU. 

There are other benefits to proper list management: it’s in your financial best interest to make sure that your recipients are receptive to your emails. If too many people suddenly mark your email as spam, you hurt your own deliverability rates. Also, with an email payment plan that charges you per user, unsubscribes help you reduce cost and better target your current audience.

So, keep only one well-managed email list per audience, use an Email Service Provider to manage opt-outs, and have someone knowledgable using the ESP, and you’ll be on your way to following the CAN-SPAM laws. Enjoy your $46,517 savings!