Tag: Marketing

Are Your Business E-Mail Messages Legally Compliant?

Overview:

You may have heard of The Can-Spam Act (“Can-Spam”), but if your business engages in email marketing, you must understand the requirements and put processes in place for compliance.  Can-Spam is a federal law that establishes requirements for all outbound commercial messages, regardless of whether they are B to B (business to business) or B to C (business to customer) messages.  The Act also provides recipients the right to have you discontinue your emails to them, which is referred to as an “opt-out” provision.   Finally, it instills high penalties for non-compliance.

Requirements:

The main requirements of Can-Spam are as follows:

  1. Header or subject line information must NOT be misleading.
  2. The subject line must be an accurate descriptor of the content of the message.
  3. Clear and Conspicuous identification that the message is an ad.
  4. Recipients must be provided your address.
  5. You must include an Opt-Out mechanism to avoid future messages.
  6. Opt-out requests must be honored promptly (i.e. within 10 business days).
  7. If you hire another company to handle your e-mail marketing, you are responsible for their compliance with Can-Spam.

Penalties for Non-Compliance:

Each separate email message that does not comply with Can-Spam may be the subject of up to $40,000 or more in penalties, and multiple people may be responsible for violations.  Therefore, both the company whose product or service is being advertised and the marketing company who originated the message may be legally responsible for violations.  In addition to the requirements of Can-Spam, commercial email messages must comply with other laws as well.  For example, if the content is deceptive or misleading information about a product, then the sender may be in violation of the FTC Act and/or other state laws regarding false and deceptive business practices.  Further, impersonation or the unauthorized use of the sender’s computer or system or other such acts are subject to criminal penalties.

Not all commercial messages require compliance with Can-Spam.  Only those messages whose primary purpose is commercial in nature.   For instance, emails to customers concerning their order, or other already agreed-to transaction with your company will avoid the necessity to comply with Can-Spam as they are viewed as relationship or transactional messages.  However, oftentimes a business will send a message that combines elements of transactional or relationship content with commercial content.  At that time, it is important to consult with an attorney for guidance as to whether such a message must comply with Can-Spam or if the message would not fall under the purview of Can-Spam.

If you have any further questions or wish to inquire about our fixed-fee advertising clearance services, please contact:

Natalie A. Remien at:

(312) 368-0100 or nremien@lgattorneys.com.

Who is In Charge of the Advertising and Social Media Content?

Social media has become one of the biggest and best ways for companies to advertise to their customers and generate new customers. Even smaller companies blast tens or hundreds of messages per week. But who is in charge of monitoring what is said, how it is said, and the legality of what is said? Do all companies have their lawyers reviewing this content? Likely not.

For a large company with an in-house legal department, procedures are often already in place where the legal department routinely conducts a comprehensive review of each piece of advertising and social media content before it is placed into the cyber world for all its customers and potential customers to see. For a small company, this is often not the case.

For many small companies, an internal marketing department is tasked with creating, reviewing, editing and sending out social media and advertising content. Yet, this department may or may not have the legal expertise to ensure that the company avoids claims that another party may construe as false advertising or claims that require legal substantiation under Federal or state law. Further, the company must ensure that their trademark and copyright denotations are used correctly and that the use of any other company’s intellectual property, if applicable, is used with permission or under license. Finally, the company must display all necessary disclaimers. These are just some of the issues that may arise without proper legal review of advertising and social media pieces. No company is shielded from liability that could arise as a result of such advertising and social media communications. With the right steps, companies can utilize an intellectual property lawyer to effectively and easily establish a quick review system in order to reduce their risk and exposure concerning advertising and social media content.

If you have any questions in this area, please contact:

Natalie A. Remien at:

nremien@lgattorneys.com or 312-368-0100

 

DISCLAIMER: This blog post is INFORMATIONAL ONLY, and DOES NOT CONSITUTE LEGAL ADVICE. No company should rely on this or any Levin Ginsburg blog entry or press release as legal advice, as it DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP with any client or potential client. For individualized legal advice, please call Levin Ginsburg and inquire about representation.

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