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Staying on the E-mail Up and Up: What Nonprofits Need to Know about CAN-SPAM

January 2005

Note: The following discussion is provided for informational purposes only and is not intended to serve as legal advice. For specific information about the CAN-SPAM law, consult your attorney.

Scenario A: You receive an e-mail from a charity asking for a donation. You purchased a product from the organization two years ago but have not had any contact with it since then. As you follow the instructions for removing yourself from this nonprofit's e-mail list, you wonder: should you report the organization to the FTC for spamming you?

Scenario B: Your nonprofit wants to conduct a survey on a topic related to your mission. A coworker suggests purchasing a list of e-mail addresses and sending all 500 people on it a message inviting them to participate in the survey. Will your organization be violating federal anti-spam regulations if you do?

Scenario C: A charity that trains the working poor for jobs in the food-services industry starts a catering program. The new enterprise will give trainees practical experience as well as provide income for several of the nonprofit's charitable activities. A board member urges the executive director to send everyone who subscribes to the organization's newsletter a special e-mail advertising the venture. After all, the board member points out, charities are exempt from the CAN-SPAM law. The executive director asks, "Are they?"

According to Scott Johnson, a principal attorney with Ober|Kaler in Baltimore, Maryland, the answer to all three questions is "No."

In Scenario A, the e-mail is in compliance with the CAN-SPAM law for three reasons: (1) you have a transactional relationship with the organization, because you purchased something from it within the last three years; (2) a charity's request for donations is not considered a commercial message, even when it is sent in a bulk e-mail; and (3) the charity provided a way for you to remove your e-mail address from future mailings.

In Scenario B, there may or may not be a transactional relationship between the nonprofit and the people on the mailing list. Because the e-mail is not commercial in nature and is related to the organization's mission, however, it is OK under CAN-SPAM. Also OK under CAN-SPAM are nonprofit messages with information for members, renewals, surveys, or news about upcoming programs.

In Scenario C, the board member is mistaken; nonprofits—even charities—are not exempt from CAN-SPAM. It would still be OK for the organization to send the e-mail, though. Although the charity charges for its catering services, the program is related to its mission. Plus, the nonprofit has a current relationship with its newsletter subscribers. To be on the safe side, however, the organization should put the word Advertisement prominently in the message, either in the subject line or the body of the e-mail.

Here are more details from Scott Johnson's conversation last month with Newsletter editor Suzanne Coffman.

About CAN-SPAM

CAN-SPAM regulates unsolicited commercial e-mail (spam); essentially, it requires that such messages be clearly identified and that recipients be given a means to remove themselves from the mailing lists for them. The law went into effect on January 1, 2004; on December 16, 2004, the Federal Trade Commission (FTC) released final regulations on determining the primary purpose of a commercial e-mail.

Unlike the FTC's Do Not Call List, CAN-SPAM  does apply to nonprofit organizations. Although the FTC does not have jurisdiction over nonprofits, state attorneys general and individual Internet Service Providers can enforce the law. CAN-SPAM preempts state laws governing unsolicited commercial e-mails.

To determine if an e-mail message falls under CAN-SPAM, ask, "Is it a commercial advertisement or promotion?" If it is, ask, "Is it unsolicited?" If it is, the regulations and penalties under CAN-SPAM apply to it.

CAN-SPAM Checklist

Nonprofits can still send unsolicited bulk e-mails—even commercial ones—without violating CAN-SPAM. Here is a quick checklist of steps to take to make your messages CAN-SPAM compliant:

  • Send all e-mails from a legitimate, active e-mail address.
    If the recipient hits "Reply" and responds to the message, the answer should go to an in-box that is monitored, not just disappear into cyberspace.
  • Provide accurate header information and a postal address for the sender.
    The "From" section of the e-mail should identify either the sender or the organization, or both. The body of the message should contain a snail-mail address.
  • Give the message an accurate subject line.
    It is unlawful to use subject lines that mislead the recipient about the contents or subject matter of the message.
  • When in doubt, err on the side of caution.
    If it's likely a recipient would view the message as an advertisement or promotion, put the word  Advertisement in the subject line or body of the e-mail, even if the message is related to your mission.
  • Provide recipients a way to opt out of future mailings.
    Either include a link to a page where recipients can remove their addresses or provide an e-mail address where they can write to have their addresses removed.
  • If someone opts out of future mailings, respect their wishes.
    You have 10 days to remove them from your mailing list(s).
Questions? Consult the FTC's concise summary of the requirements for commercial e-mailers.

"Complying with CAN-SPAM is not very difficult," Scott Johnson says. Use it as a guide for your e-mailing practices, and your organization shouldn't run afoul of the law.

Suzanne E. Coffman, January 2005
© 2005, Philanthropic Research, Inc. (GuideStar)

Special thanks to E. Scott Johnson for providing the information for this article. A principal attorney with Ober|Kaler in Baltimore, Maryland, Scott Johnson is chair of the firm's Intellectual Property Practice Group. He has diverse experience in licensing, trademark, copyright, technology, Internet, and entertainment law matters. For more information on Ober|Kaler, go to www.ober.com.

Suzanne Coffman is GuideStar's director of communications and editor of the Newsletter.