Resource Library | Before Clicking Send, Is That Legislative Alert Spam?
By Ernie Landante
Novita Issue Communications
July 25, 2005
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The broadcast e-mail message seems the most effective way to regularly reach a large audience quickly, and at minimal expense. If the message is issued from a legislative or issue organization’s office, common sense indicates that it’s not trying to sell anti-depressants or promising to improve anyone’s sex life.
But the legislative alert you’re about to e-mail to your members, supporters, legislators and others should raise a cautionary flag on another level. Can it be considered spam?
Clogged e-mail inboxes and sore delete fingers have prompted U.S. Congress to pass the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act). This 2003 legislation (Public Law 108-187), the miscellaneous state regulations governing e-mail and the public outcry have all produced an assortment of new terms with predictably vague definitions.
If you think this sweeping legislation does not apply to non-profit associations, issue groups or campaigns, you are in for a wake-up call.
The FTC’s position is that recipients of promotional or advertising e-mail messages from non-profits should have the same privacy and other protections as those who receive such messages from profit-making businesses.
What is the letter of the law if you want to tell people about a bill in committee next week, to ask them to either support (or oppose) it, to attend the committee meeting or to perhaps write a letter to the editor? Maybe there is breaking news on an issue and you want to send a news alert to constituents. How can you send legislative alerts or news updates via e-mail that don’t run afoul of CAN-SPAM?
The Federal Trade Commission said the main focus of the CAN-SPAM legislation is to regulate e-mails whose primary purpose is selling something. The best way to prevent a problem is to make sure there is nothing in your alert that tries to sell anything. Mixing a legislative message with a sales pitch -- a dual-purpose message -- can turn your otherwise problem-free alert into an e-mail message that is subject to the Act.
Does it seem strange that anyone would mix a legislative alert with a sales message? It did to me, but consider that associations sell their members books, subscriptions, seminars and convention attendance. It is perfectly reasonable (and smart) for an association to remind its members of the offers by placing a few lines or a box in the alert.
But once that commercial content is added to the alert, you need to ask yourself this: Is the message in the e-mail’s body or subject line going to cause a recipient to reasonably believe the message is intended to sell or promote a product or service? This question is part of the FTC’s “net impression” test to determine if you’re legislative alert is commercial e-mail.
The “net impression” test includes checking the location of the commercial content (is it near the beginning or end of the message?), the proportion of the message dedicated to commercial content, and the use of color, graphics, types size, and style to highlight commercial content. Based on its interpretation of any one of these elements, the FTC can deem your message “commercial.”
The safest route for any legislative or issues staff member therefore is to keep out commercial content in e-mails intended for informational or editorial messages, like legislative alerts and updates.
For issue groups and associations that send commercial e-mails, complying with the commercial e-mail rules can be a headache. The rules require commercial e-mails to offer recipients an opt-out provision, disclose that it is an “advertisement” or a “solicitation” and display the sender’s valid physical postal address.
You’ll want to either create two separate databases -- one to send commercial e-mails and the other to send non-commercial legislative alert and update e-mails -- or to encode one database that can separate recipients who have asked not to get any commercial messages. This will ensure that any members or supporters who opt-out of your commercial e-mails will continue to receive your informational, noncommercial messages.
Just make sure any opt-out request is honored within ten days as required by the regulation set forth under the CAN-SPAM legislation. The Federal Elections Commission (FEC) is considering shortening this grace period to only three days. The potential consequences are severe for sending a commercial e-mail to someone who has opted-out of such e-mails after the grace period, so be careful.
Okay, you can press the enter button now, and send your message.
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Ernie Landante is President of Novita Issue Communications. For more information about this issue, or to learn more about how to adapt the skills and experience of the Novita management team and to learn about the services that can support your communication objectives, please call: (609) 989-1000, or send an e-mail with your contact information to: landante@novitainc.com.
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This article is based on “The Federal Spam Law: FTC Issues Additional Guidelines and Proposed New Rules for Complying with the CAN-SPAM Act”. Published June 2005 and written by Jeffrey S. Tenenbaum and Ellen E. Traupman of Venable, LLP, their well-written and detailed 4,600-word paper is available by visiting Venable’s Web site: venable.com/publications.cfm?action=view&publication_id=1172&publication_type_id=2
Novita Issue Communications
July 25, 2005
---------------------------------------------------------------------
The broadcast e-mail message seems the most effective way to regularly reach a large audience quickly, and at minimal expense. If the message is issued from a legislative or issue organization’s office, common sense indicates that it’s not trying to sell anti-depressants or promising to improve anyone’s sex life.
But the legislative alert you’re about to e-mail to your members, supporters, legislators and others should raise a cautionary flag on another level. Can it be considered spam?
Clogged e-mail inboxes and sore delete fingers have prompted U.S. Congress to pass the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act). This 2003 legislation (Public Law 108-187), the miscellaneous state regulations governing e-mail and the public outcry have all produced an assortment of new terms with predictably vague definitions.
If you think this sweeping legislation does not apply to non-profit associations, issue groups or campaigns, you are in for a wake-up call.
The FTC’s position is that recipients of promotional or advertising e-mail messages from non-profits should have the same privacy and other protections as those who receive such messages from profit-making businesses.
What is the letter of the law if you want to tell people about a bill in committee next week, to ask them to either support (or oppose) it, to attend the committee meeting or to perhaps write a letter to the editor? Maybe there is breaking news on an issue and you want to send a news alert to constituents. How can you send legislative alerts or news updates via e-mail that don’t run afoul of CAN-SPAM?
The Federal Trade Commission said the main focus of the CAN-SPAM legislation is to regulate e-mails whose primary purpose is selling something. The best way to prevent a problem is to make sure there is nothing in your alert that tries to sell anything. Mixing a legislative message with a sales pitch -- a dual-purpose message -- can turn your otherwise problem-free alert into an e-mail message that is subject to the Act.
Does it seem strange that anyone would mix a legislative alert with a sales message? It did to me, but consider that associations sell their members books, subscriptions, seminars and convention attendance. It is perfectly reasonable (and smart) for an association to remind its members of the offers by placing a few lines or a box in the alert.
But once that commercial content is added to the alert, you need to ask yourself this: Is the message in the e-mail’s body or subject line going to cause a recipient to reasonably believe the message is intended to sell or promote a product or service? This question is part of the FTC’s “net impression” test to determine if you’re legislative alert is commercial e-mail.
The “net impression” test includes checking the location of the commercial content (is it near the beginning or end of the message?), the proportion of the message dedicated to commercial content, and the use of color, graphics, types size, and style to highlight commercial content. Based on its interpretation of any one of these elements, the FTC can deem your message “commercial.”
The safest route for any legislative or issues staff member therefore is to keep out commercial content in e-mails intended for informational or editorial messages, like legislative alerts and updates.
For issue groups and associations that send commercial e-mails, complying with the commercial e-mail rules can be a headache. The rules require commercial e-mails to offer recipients an opt-out provision, disclose that it is an “advertisement” or a “solicitation” and display the sender’s valid physical postal address.
You’ll want to either create two separate databases -- one to send commercial e-mails and the other to send non-commercial legislative alert and update e-mails -- or to encode one database that can separate recipients who have asked not to get any commercial messages. This will ensure that any members or supporters who opt-out of your commercial e-mails will continue to receive your informational, noncommercial messages.
Just make sure any opt-out request is honored within ten days as required by the regulation set forth under the CAN-SPAM legislation. The Federal Elections Commission (FEC) is considering shortening this grace period to only three days. The potential consequences are severe for sending a commercial e-mail to someone who has opted-out of such e-mails after the grace period, so be careful.
Okay, you can press the enter button now, and send your message.
---------------------------------------------------------------------
Ernie Landante is President of Novita Issue Communications. For more information about this issue, or to learn more about how to adapt the skills and experience of the Novita management team and to learn about the services that can support your communication objectives, please call: (609) 989-1000, or send an e-mail with your contact information to: landante@novitainc.com.
---------------------------------------------------------------------
This article is based on “The Federal Spam Law: FTC Issues Additional Guidelines and Proposed New Rules for Complying with the CAN-SPAM Act”. Published June 2005 and written by Jeffrey S. Tenenbaum and Ellen E. Traupman of Venable, LLP, their well-written and detailed 4,600-word paper is available by visiting Venable’s Web site: venable.com/publications.cfm?action=view&publication_id=1172&publication_type_id=2
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