The CAN-SPAM Act went into effect January 1, 2004 and preempts all state laws. When sending campaigns through Constant Contact it's very important that you abide by the rules of the CAN-SPAM Act:
 | Be a better marketer: When you're sending to contacts, you must follow the applicable laws for the country you're sending to, including the CAN-SPAM Act in the United States, CASL in Canada, and The GDPR in the European Union. Learn more about how to keep your email marketing campaigns ethical and legal. |
The CAN-SPAM Act is the Controlling the Assault of Non-Solicited Pornography and Marketing Act. While this law will not stop spam, it does make most spam illegal and ultimately less attractive to spammers. The law is specific about requirements to send commercial email and empowers the federal government to enforce the law. The penalties can include a substantive fine and/or imprisonment for up to 5 years. The law also includes a private right of action clause for internet service providers (but not for individuals) to sue a sender regarding the receipt of prohibited messages.
The FTC has produced some materials to help businesses understand and comply with the CAN-SPAM Act:
Constant Contact's terms and conditions require that your list be permission-based, which means that you already comply with the unsolicited email requirements stated in the law. To ensure that your emails are fully compliant with CAN-SPAM, there are additional requirements:
Subject line - Make sure that your email campaign's "Subject" line is straightforward, not misleading. The Adteractive settlement reinforces the FTC's commitment to enforce this requirement.
Honoring unsubscribe requests - If you aren't already doing so, any unsubscribe requests that come to you via a reply to your email must be honored within 10 business days of the request. (You can manually unsubscribe a contact by changing their permission to "Unsubscribed" in your account.)
Tracking unsubscribe requests - Unsubscribe requests never expire. You must honor all opt-out requests indefinitely, regardless of future mailing platforms, unless you receive a new explicit opt-in request for that address. (You can keep track of previously unsubscribed contacts by uploading them into your account.)
Physical address - You need to include a physical address in your email campaigns. Constant Contact requires that you add a physical address before you can schedule a campaign. Make sure that this address is a valid physical postal address or PO box for your organization. This address appears in the footer at the bottom of your email.
Recognizable From Name and address - The "From Address" and "From Name" should be clearly recognizable as belonging to your organization.
Valid Reply To address - The "Reply To" address needs to be valid because sometimes contacts reply to the email to ask to unsubscribe instead of using the opt-out link in the email's footer.
Prohibition of incentives to forward - Make sure you are not procuring the "forwarding" of your campaigns by offering any kind of incentive (e.g. coupons, discounts, t-shirts, etc.) to your recipients. Forwarded messages that contain incentives to forward are non-compliant under CAN-SPAM because they are considered commercial messages and won't contain the required opt-out mechanism.
In May 2008 the Federal Trade Commission (FTC) released it's Statement of Basis and Purpose and Final Discretionary Rule (Final Rule). This statement contains four new rules, and also contains some clarifications and guidance to the text of the original act. The new rules went into effect on July 7th 2008. Read the FTC press release.
The From: address visible to your recipients should be clearly recognizable as being sent from you. In addition, if you work with affiliates or you have 3rd party advertisements in your email campaigns you should review the new rule provisions relating to the definition of sender as it relates to multi-sender emails.
The opt-out mechanism must not be complicated: "an e-mail recipient cannot be required to pay a fee, provide information other than his or her e-mail address and opt-out preferences, or take any steps other than sending a reply e-mail message or visiting a single Internet Web page to opt out of receiving future e-mail from a sender". (The Constant Contact opt-out mechanism is compliant with the new guidelines.)
Commercial mailers may now use a valid P.O box as the required physical postal address in their messages, as long as it is valid and meets USPS registration guidelines.
The term "person" has been defined as "an individual, group, unincorporated association, limited or general partnership, corporation, or other business entity." This is intended to clarify that CAN-SPAM's obligations are not limited to natural persons.
If you are a single organization sending email on your own behalf and do not publish ads from third parties in your emails, then the new rules will likely have little impact on you unless your opt-outs do not comply with the new stricter opt-out guidelines. If you work with a third party (other than Constant Contact) that manages your opt-outs for you, you should consult with them to make sure that their mechanism will comply with the new rule provisions.
The Final Rule also provides some additional guidance, the Statement of Basis and Purpose, on aspects of the Act that it does not explicitly modify in the Final Rule. Although these items are not officially mandated, they give guidance on how the FTC is likely to interpret applicability and compliance, and in that context should be given careful consideration.
The FTC clarifies that forward-to-a-friend mechanisms, which have generally been treated as exempt from CAN-SPAM because they are 1-to-1 messages from the original recipient to their friend, may in fact be subject to CAN-SPAM if the originator of the message "procures" the forwarding or if the forwarded message is stored in any way by the forwarding system.
A message has been "procured" if "the seller offers money, coupons, discounts, awards, additional entries in a sweepstakes, or the like in exchange for forwarding a message".
Most forward-to-a-friend mechanisms are not set up to include opt-out links. If you ask someone to forward an email, and the recipient of the forwarded email cannot unsubscribe, the message is non-compliant with CAN-SPAM. The final recipient needs to be able to opt-out of future messages from the original sender.
There is fairly extensive guidance given on the definition of a "transactional or relationship message". The FTC decided not to exempt entire classes of messages from CAN-SPAM, but rather requires they be considered on "a case-by-case basis depending on the specific content and context of such messages". If all of your communications to your recipients are already CAN-SPAM compliant, you don't need to worry about these clarifications; if you do treat some of your communication as transactional you probably want to look at this section in more detail to ensure that you're not impacted by the clarifications.
The FTC has decided not to alter the time limit (10 business days) for honoring an opt-out request; in addition, it reaffirms that there is no time-out on an opt-out request, i.e. that it may only be over-ridden by a subsequent explicit opt-in request.
Any links we provide from non-Constant Contact sites or information about non-Constant Contact products or services are provided as a courtesy and should not be construed as an endorsement by Constant Contact.
Copyright © 2025 · All Rights Reserved · Constant Contact · Privacy Center