August 15, 2017

Each separate violation of the CAN-SPAM Act carries penalties up to $40,654. A practice that has emailed 10 people ten times each in violation of the CAN-SPAM Act would be subject to more than four million dollars in fines. Having another company do emails for you does not limit your liability under the CAN-SPAM Act, and the company helping with the emails is equally liable. Additionally, violations of standard practices in email lists can get your domain name and your IP address blacklisted from email servers and even from search results. Fortunately, there are only eight rules, and they are easy. So let's review them.

With Brazzell Marketing Agency making fully-automated email newsletters available for as little as $16.99 per month [Learn More], home health, home care, and physical therapy practices should all have email newsletters as a component of their marketing mix. For most community-based and outpatient healthcare providers, the distribution of email newsletters is essentially free, so ignoring this medium as a method of communication to your base would be an oversight. Emails should be used to educate, remind, and motivate your core audiences. The cost of doing it wrong is high, but the rules are easy to follow.

Seven Elements of the CAN-SPAM Act:

  1. Accurate Header Information: This refers to the "from," "to," and "reply-to" addresses. These addresses should not misrepresent the identity of the sender or the intended recipient.
  2. Deceptive Subject Lines: The subject line of your email advertisement must not misrepresent the email content.
  3. Identify the Message as an Ad: Don't try to make the email look like a bill or some sort of business correspondence if there is a sales objective. If the email is a newsletter, naming the newsletter, clearly stating "Our News," or similar headings will help identify a newsletter as such.
  4. Show a Correct Mailing Address: All email ads must display a correct physical address for the sender. 
  5. Give Opt-Out Instructions: Opt-out procedures do not need to be automated, but they do need to be clearly stated. It's enough to have instructions at the very bottom that people can opt out by replying to the email with the subject line "Opt-Out." If, instead, there is a button to a webpage, additional rules apply. You cannot have people go through more than one page to opt-out. You cannot require personal information other than the email address. You may, however, give the subscriber the option of changing their email preferences in addition to a full opt-out option.
  6. Honor the Opt-Out Request: Opt-out requests must be implemented promptly. You may not transfer email addresses to another entity or another list when people opt out. You may not sell email addresses based on opting out.
  7. You Can't Pass the Buck: The law specifically states that companies can not get out of responsibility under this law by hiring another company to do their emails. 

A very important rule missing from the CAN-SPAM Act is that all email lists must be permission-based. This means that if you send email advertisements or newsletters, people should have specifically given you permission to use their email address that way. Purchased lists, by definition, are not permission-based, because the subscriber could not have given you permission to email newsletters without even knowing who you are. While there can be serious repercussions, to the best of our knowledge, permission-based email marketing is not a legal requirement. In fact, there are email service providers that specialize in sending your email newsletters to purchased lists. Such providers tend to cost ten times more than more reputable providers such as MailChimp and Constant Contact. 

So how are permission-based lists a rule? It's an agreed standard across the internet, and enforcement occurs through the major players. If a high-enough percentage of people mark your incoming email as spam, a series of bad things can happen to your company. You get banned from reputable email-sending companies such as Constant Contact, and they take multiple steps to keep you from trying to sneak back in to their service. Both your domain name and your IP address can get a bad reputation and end up on blacklists. Email servers use these blacklists to help decide which emails to let through. Resultantly, the deliverability of your normal business emails goes down. These blacklists can even affect if your website shows up in search results. In short, emailing to purchased lists or without permission is considered anti-social behavior and should be avoided by reputable businesses.

The gold standard for permission-based lists is the double-opt-in. Double-opt-in means the person signed up for your emails, and then you sent a confirmation email that the reader must respond to before being fully subscribed. Double-opt-in is not a requirement in most circumstances. If your single-opt-in is clear enough, your emails won't get marked as spam, and the cascade of repercussions described above won't affect you. Double-opt-in provides you with that extra reassurance that a typo didn't cause you to email a newsletter to the wrong person.  

All that being said, the simple answer is consider this the golden rule: "Don't email ads to anyone who didn't ask for it." Add that to the seven easy legal requirements, and you are ready to safely harness the marketing power of email for your practice or agency. Use emails to remind your fan base that you are still around, teach them about your competitive advantages, give them useful information to demonstrate your expertise, and activate past clients and their friends. 


All Points Bulletin

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