The US regulates marketing communications extensively, including email and text message marketing, as well as telemarketing and fax marketing.
E-mail
The CAN-SPAM Act is a federal law that applies labelling and opt-out requirements to all commercial email messages. CAN-SPAM generally allows a company to send commercial emails to any recipient, provided the recipient has not opted out of receiving such emails from the sender, the email identifies the sender and the sender’s contact information, and the email contains instructions on how the recipient can easily and without cost opt out of future commercial emails from the sender. Not only the FTC and State Attorneys General, but also ISPs and corporate email systems can sue violators. Furthermore, knowingly falsifying the origin or routing of a commercial email message is a federal crime.
Text Messages
Federal and state regulations apply to the sending of marketing text messages to individuals. Express consent is required to send text messages to individuals, and, for marketing text messages, express written consent is required (electronic written consent is sufficient, but verbal consent is not). The applicable regulations also specify the form of consent. This is a significant class action risk area, and any text messaging (marketing or informational) needs to be carefully reviewed for strict compliance with legal requirements.
Telemarketing
In general, federal law applies to most telemarketing calls and programs, and a state’s telemarketing law will apply to telemarketing calls placed to or from within that particular state. As a result, most telemarketing calls are governed by federal law, as well as the law of one or more states. Telemarketing rules vary by state, and address many different aspects of telemarketing. For example, national (‘federal’) and state rules address calling time restrictions, honouring do-not-call registries and opt-out requests, mandatory disclosures to be made during the call, requirements for completing a sale, executing a contract or collecting payment during the call, restrictions on the use of auto-dialers and pre-recorded messages, and record keeping requirements. Many states also require telemarketers to register or obtain a license to place telemarketing calls.
Callers generally must scrub their calling lists against both a national and multiple state do-not-call registries, as it is prohibited to place a telemarketing call to a number listed in a do-not call registry unless a specific exemption applies. The national do-not-call rules (and several state rules), for example, exempt calls to existing business customers who have purchased a product or service in the last 18 months from the company on whose behalf the call is placed, as long as the customer has not specifically opted out of receiving telemarketing calls from the company. The use of auto-dialers to send pre-recorded messages generally requires affirmative opt-in consent of the recipient.
Fax Marketing
Federal law and regulations generally prohibit the sending of unsolicited advertising by fax without prior, express consent. Violations of the law are subject to civil actions and have been the subject of numerous class action lawsuits. The law exempts faxes to recipients that have an established business relationship with the company on whose behalf the fax is sent, as long as the recipient hasn’t opted out of receiving fax advertisements and has provided their fax number ‘voluntarily,’ a concept which the law specifically defines. The law also requires that each fax advertisement contain specific information, including:
A ‘clear and conspicuous’ opt out method on the first page of the fax
A statement that the recipient may make a request to the sender not to send any future faxes and that failure to comply with the request within 30 days is unlawful, and
A telephone number, fax number, and cost-free mechanism to opt-out of faxes, which permit consumers to make opt-out requests 24 hours a day, seven days a week.
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A ‘clear and conspicuous’ opt out method on the first page of the fax
A statement that the recipient may make a request to the sender not to send any future faxes and that failure to comply with the request within 30 days is unlawful, and
A telephone number, fax number, and cost-free mechanism to opt-out of faxes, which permit consumers to make opt-out requests 24 hours a day, seven days a week.
