Mark Pestronk
Q: A client of our agency recently told me that our emailed offers are illegal because they don't comply with the federal CAN-SPAM Act. I seem to remember that there is a law by that name, but I haven't heard anything about it for several years. Can you please review the requirements of the law that apply to agencies and tour operators? Does the law apply to corporate travel as well as leisure travel, or is there an exception for B2B communications? Is there an exception for repeat clients? Is there an exception for nonmass mailings to just a few, select clients?
A: The CAN-SPAM Act sets rules for commercial emails. Violators are subject to a fine of up to $16,000 for each illegal email.
A commercial email is "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service." A typical example would be a mass mailing promoting last-minute cruise discounts.
Contrary to popular belief, there is no exception for B2B communications, so emails to existing or prospective corporate clients come under the law if they are solicitations or the like.
There is no exception for repeat clients: Just because a client bought a cruise last year, it does not follow that this year's solicitations are exempt.
Finally, there is no exemption for non-mass mailings; a single email to a single client soliciting leisure or corporate business is subject to the law. As long as the email is a solicitation, it is subject to the law.
The only three exceptions are: (1) "transactional emails," which are messages whose primary purpose is to facilitate an already agreed transaction, such as "attached is your itinerary," (2) messages to clients that have already opted to receive emails from you and (3) "other messages," such as a holiday greeting to clients.
If your message is subject to the law, here are five simple rules for travel businesses that want to comply:
(1) Make sure the subject line accurately reflects the content of the message. So don't put "your attached itinerary" as the subject when you are announcing a new program.
(2) Identify the message as an ad or marketing message. This is usually obvious from the look of the email, such as a newsletter, but if it isn't, you must state that it is an advertisement.
(3) Include your physical address. There is no exception for home-based agencies, although providing the address of your host agency is probably sufficient if you can receive mail there. In my experience, this rule is rarely honored.
(4) Make it easy to opt out of receiving future email from you by giving a return email address or link to an unsubscribe website. You may create a menu to allow a recipient to opt out of certain types of messages and not others, but you must include the option to stop all commercial messages from you.
(5) Above all, honor opt-out requests promptly and in any event within 10 business days. Business' failure to take this step has been the main source of litigation and fines under the law.
Once someone opts out, you are not allowed to sell or transfer the email address to any third party, such as your consortium or co-op for their promotional purposes.