Lead GenerationAct or rule
CAN-SPAM
Author
Berkeley Robinson, Esq.
Managing Attorney, Robinson Law Firm PLLC
Author
Berkeley Robinson, Esq.
Managing Attorney, Robinson Law Firm PLLC
Berkeley has served as the go-to counsel for many scaling businesses in a transactional and litigation management capacity. Before becoming an attorney, Berkeley grew sales teams, ran online marketing campaigns, and did everything else an entrepreneur does—and still does today as the founder of two online businesses.
Definition
CAN-SPAM is the federal statute that regulates commercial email by requiring, among other things, that messages correctly identify their source, allow consumers to unsubscribe, and contain a physical postal address, rather than making all unsolicited email illegal. Source: Mem. Supp. Pl.'s Mot. for TRO, No. 04C 6901 (N.D. Ill.)
The statute covers a commercial electronic mail message, meaning any email whose primary purpose is the commercial advertisement or promotion of a commercial product or service. Source: 15 U.S.C. § 7702 A transactional or relationship message is excluded from that definition. Source: 15 U.S.C. § 7702
Congress gave the statute the formal name Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. Source: CAN-SPAM Act of 2003, Pub. L. No. 108-187, § 1, 117 Stat. 2699 It took effect on January 1, 2004. Source: 15 U.S.C. § 7702
Key legal rules
These are the primary duties CAN-SPAM places on a business:
- A commercial or transactional email may not carry header information that is materially false or materially misleading. Source: 15 U.S.C. § 7704
- It is unlawful to send a commercial email when the sender has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, that the subject heading would be likely to mislead a recipient, acting reasonably, about a material fact regarding the contents or subject matter of the message. Source: 15 U.S.C. § 7704
- A commercial email must contain a functioning return email address or other Internet-based mechanism, clearly and conspicuously displayed, that a recipient may use to ask not to receive future commercial email from that sender. Source: 15 U.S.C. § 7704
- Each commercial email must also give clear and conspicuous notice of the recipient's opportunity to decline further commercial email from the sender. Source: 15 U.S.C. § 7704
- When a recipient asks through the opt-out mechanism not to receive some or any commercial email from a sender, it is unlawful for the sender to send a commercial email within the scope of the request more than 10 business days after receiving it. Source: 15 U.S.C. § 7704
- After a recipient has made such a request, the sender, or anyone who knows of the request, may not sell, lease, exchange, or otherwise transfer the recipient's address, including through a mailing list, except to comply with the law, unless the recipient later gives affirmative consent. Source: 15 U.S.C. § 7704
- Neither a sender nor anyone acting for a sender may require a recipient to pay a fee, to provide information beyond an email address and opt-out preferences, or to take steps other than sending a reply email or visiting a single web page in order to opt out or have the request honored. Source: 16 C.F.R. § 316.5
- A commercial email must give clear and conspicuous identification that it is an advertisement or solicitation, except that this requirement does not apply when the recipient has given prior affirmative consent to receive the message. Source: 15 U.S.C. § 7704
- A commercial email must provide a valid physical postal address of the sender, which a regulation defines as the sender's current street address, a Post Office box the sender has accurately registered with the United States Postal Service, or a private mailbox the sender has accurately registered with a commercial mail receiving agency. Source: 15 U.S.C. § 7704
- It is unlawful for a business to promote, or allow the promotion of, its trade or business or its goods or services in a commercial email sent with materially false or misleading header information if the business knew or should have known of the promotion, received or expected an economic benefit from it, and took no reasonable action to prevent the transmission or to detect it and report it to the Commission. Source: 15 U.S.C. § 7705(a)
For the sake of space, this page lists only the primary rules related to this term that most businesses should follow. More may apply to your situation, and your unique facts affect how they apply.
Send us a message through our online form to talk through yours.
Send a messageWhy these rules exist
Congress found that the convenience and efficiency of electronic mail were threatened by the extremely rapid growth in the volume of unsolicited commercial electronic mail. Source: CAN-SPAM Act of 2003, Pub. L. No. 108-187, § 2, 117 Stat. 2699 It also found that many senders purposefully disguise the source of that mail. Source: CAN-SPAM Act of 2003, Pub. L. No. 108-187, § 2, 117 Stat. 2699 On those findings Congress determined that senders should not mislead recipients about where mail comes from or what it contains. Source: CAN-SPAM Act of 2003, Pub. L. No. 108-187, § 2, 117 Stat. 2699 It also determined that recipients have a right to decline further mail from the same source. Source: CAN-SPAM Act of 2003, Pub. L. No. 108-187, § 2, 117 Stat. 2699The duties follow that structure. A message with a false header or subject line leaves the recipient unable to tell who is writing and why, and an opt-out that is hidden, broken, or ignored leaves the recipient unable to stop the mail. Each rule closes one of those gaps.
A second reason is uniformity. Congress found that states had enacted differing anti-spam laws. Source: CAN-SPAM Act of 2003, Pub. L. No. 108-187, § 2, 117 Stat. 2699 CAN-SPAM supersedes state email laws except to the extent they prohibit falsity or deception. Source: 15 U.S.C. § 7707(b)
Enforcement examples
FTC v. Publishers Clearing House, LLC (sweepstakes marketing emails)
FTC v. Publishers Clearing House, LLC, Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief
The FTC's complaint alleged that the company sent millions of emails referencing fictitious forms and documents named with a "W" followed by a number, the naming convention the IRS uses on tax forms. Source: Complaint for Permanent Injunction, Monetary Relief, and Other Relief, FTC v. Publishers Clearing House, LLC According to the complaint, these fabricated forms appeared prominently in subject lines, yet the body of the email contained no further reference to them once a consumer opened the message. Source: Complaint for Permanent Injunction, Monetary Relief, and Other Relief, FTC v. Publishers Clearing House, LLC
Outcome. The stipulated order, entered June 30, 2023, permanently enjoined the company from sending a commercial email that contains a subject heading likely to mislead a recipient, acting reasonably, about a material fact regarding the contents or subject matter of the message. Source: FTC v. Publishers Clearing House, LLC, Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (June 30, 2023) The same order entered $18,500,000 in monetary relief. Source: FTC v. Publishers Clearing House, LLC, Stipulated Order for Permanent Injunction, Monetary Judgment, and Other Relief (June 30, 2023)
United States v. ConsumerInfo.com, Inc. (credit-report account emails)
United States v. ConsumerInfo.com, Inc., d/b/a Experian Consumer Services, Stipulated Order for Permanent Injunction, Civil Penalty Judgment, and Other Relief
In the ConsumerInfo.com complaint, the government alleged that, for consumers who created a Free Membership account, the company sent commercial email masquerading as account updates, and that these emails violated CAN-SPAM by failing to give clear and conspicuous notice of the ability to opt out of further marketing messages and a mechanism for doing so. Source: Complaint, United States v. ConsumerInfo.com, Inc.
Outcome. The order, dated August 21, 2023, permanently enjoined the company from initiating or procuring a commercial email message that lacks the opt-out mechanism and notice the order describes. Source: United States v. ConsumerInfo.com, Inc., d/b/a Experian Consumer Services, Stipulated Order for Permanent Injunction, Civil Penalty Judgment, and Other Relief (C.D. Cal. Aug. 21, 2023) It also entered a $650,000 civil penalty. Source: United States v. ConsumerInfo.com, Inc., d/b/a Experian Consumer Services, Stipulated Order for Permanent Injunction, Civil Penalty Judgment, and Other Relief (C.D. Cal. Aug. 21, 2023) Finally, the order barred treating an email as a transactional or relationship message when its primary purpose is the commercial advertisement or promotion of a good or service. Source: United States v. ConsumerInfo.com, Inc., d/b/a Experian Consumer Services, Stipulated Order for Permanent Injunction, Civil Penalty Judgment, and Other Relief (C.D. Cal. Aug. 21, 2023)
United States v. Verkada Inc. (security cameras sold to businesses)
United States v. Verkada Inc., Stipulated Order for Permanent Injunction, Civil Penalty Judgment, and Other Equitable Relief
Verkada sold security cameras and other surveillance products to businesses, and the complaint alleged that it delivered a barrage of commercial emails that failed to include unsubscribe links or a clear opportunity to opt out, failed to honor requests to opt out, and failed to include a valid physical postal address. Source: Complaint for Permanent Injunction, Civil Penalty Judgment, and Other Equitable Relief, United States v. Verkada Inc.
Outcome. The court entered the stipulated order on September 4, 2024. Source: FTC, Case Timeline, United States v. Verkada Inc. (Sept. 4, 2024) It imposed injunctive relief and required a $2,950,000 civil penalty. Source: Reasons for Settlement, United States v. Verkada Inc., Stipulated Order for Permanent Injunction, Civil Penalty Judgment, and Other Equitable Relief That monetary judgment was a civil penalty for the CAN-SPAM violations alleged in the complaint. Source: Joint Motion for Stipulated Order, United States v. Verkada Inc. (findings)
FTC v. Sale Slash, LLC (diet-pill spam)
FTC v. Sale Slash, LLC, Stipulated Order for Permanent Injunction and Monetary Judgment
The complaint charged violations of the FTC Act and of CAN-SPAM in the online sale of dietary supplements, including through commercial email. Source: FTC v. Sale Slash, LLC, Stipulated Order for Permanent Injunction and Monetary Judgment (findings of fact) In its memorandum seeking a temporary restraining order, the FTC described a campaign that began when spammers obtained access to the contact list of a hacked email account. Source: Memorandum in Support of Plaintiff's Ex Parte Application for Temporary Restraining Order, FTC v. Sale Slash, LLC The FTC argued that the defendants were liable because they had "procured" the transmission of the spam. Source: Memorandum in Support of Plaintiff's Ex Parte Application for Temporary Restraining Order, FTC v. Sale Slash, LLC
Outcome. The stipulated order entered a $43,379,253.50 judgment against the individual and corporate defendants, jointly and severally, as equitable monetary relief. Source: FTC v. Sale Slash, LLC, Stipulated Order for Permanent Injunction and Monetary Judgment After specified asset transfers, though, the order suspended the remainder of the judgment, subject to its conditions. Source: FTC v. Sale Slash, LLC, Stipulated Order for Permanent Injunction and Monetary Judgment
Exposure
The Federal Trade Commission enforces CAN-SPAM as if each violation were an unfair or deceptive act or practice proscribed under section 18(a)(1)(B) of the FTC Act. Source: 15 U.S.C. § 7706Penalties are counted per message. In Jumpstart Technologies the government pleaded that each commercial email in which the defendant violated CAN-SPAM was a separate violation for which it sought civil penalties. Source: Complaint for Civil Penalties and Injunctive and Other Relief, Jumpstart TechnologiesThat complaint pleaded a ceiling of not more than $11,000 per violation. Source: Complaint for Civil Penalties and Injunctive and Other Relief, Jumpstart TechnologiesFor some provisions the FTC can obtain an injunction without alleging or proving the state of mind the provision otherwise requires. Source: 15 U.S.C. § 7706
The money in resolved matters can be large. ConsumerInfo.com paid a $650,000 civil penalty. Source: United States v. ConsumerInfo.com, Inc., d/b/a Experian Consumer Services, Stipulated Order for Permanent Injunction, Civil Penalty Judgment, and Other Relief (C.D. Cal. Aug. 21, 2023) Verkada's order required a $2,950,000 civil penalty. Source: Reasons for Settlement, United States v. Verkada Inc., Stipulated Order for Permanent Injunction, Civil Penalty Judgment, and Other Equitable Relief The Sale Slash order entered $43,379,253.50 in equitable monetary relief. Source: FTC v. Sale Slash, LLC, Stipulated Order for Permanent Injunction and Monetary JudgmentOrders also permanently enjoined future violations of sections 5 and 6 of the statute. Source: Stipulated Order for Permanent Injunction and Monetary Judgment as to Defendants Tachht, Inc., Teqqi LLC and Colby FoxA suspended judgment can come back in full. In the Tachht order a $1,303,822.98 judgment was entered. Source: Stipulated Order for Permanent Injunction and Monetary Judgment as to Defendants Tachht, Inc., Teqqi LLC and Colby Fox, § VIII The suspension lifted if the court found a material misstatement or omission in the defendants' financial representations. Source: Stipulated Order for Permanent Injunction and Monetary Judgment as to Defendants Tachht, Inc., Teqqi LLC and Colby Fox, § VIII
State attorneys general and Internet access service providers can sue as well. A state may recover damages calculated per message, up to $250 per violation. Source: 15 U.S.C. § 7706 A provider can recover up to $100 per message for a false-header violation. Source: 15 U.S.C. § 7706 A court may increase an award to as much as three times the amount otherwise available when the violation was willful and knowing or involved an aggravated violation. Source: 15 U.S.C. § 7706 In assessing damages a court may consider whether the defendant established and implemented, with due care, commercially reasonable practices and procedures designed to prevent violations. Source: 15 U.S.C. § 7706
Some conduct is criminal. The statute CAN-SPAM added, 18 U.S.C. § 1037, reaches a person who knowingly materially falsifies header information in multiple commercial emails and intentionally initiates them. Source: 18 U.S.C. § 1037Punishment includes a fine, imprisonment for not more than 5 years, or both, in the circumstances of the highest tier. Source: 18 U.S.C. § 1037 In any other case the punishment is a fine or imprisonment for not more than 1 year, or both. Source: 18 U.S.C. § 1037A court must also order forfeiture of the gross proceeds of the offense. Source: 18 U.S.C. § 1037Knowingly violating the adult-material labeling provisions carries a fine, imprisonment of up to five years, or both. Source: 15 U.S.C. § 7704
FAQs
- 1.Memorandum Supporting Plaintiff's Motion for a Temporary Restraining Order, Other Equitable Relief, and Order to Show Cause Why a Preliminary Injunction Should Not Issue. Mem. Supp. Pl.'s Mot. for TRO, No. 04C 6901 (N.D. Ill.)
- 2.15 U.S.C. § 7702. 15 U.S.C. § 7702
- 3.15 U.S.C. § 7702. 15 U.S.C. § 7702
