CAMBRIDGE, MA — The CAN-SPAM Act is good news.
That was the message delivered yesterday by attorney Martin I. Eisenstein during the “Legal Issues for Catalogers” session at the New England Mail Order Association's spring conference.
The reasons given included: It pre-empts state law; it precludes private class-action lawsuits; and it provides a uniform rule.
The bad news, however, is that state attorneys general can sue under the law in certain circumstances. They can obtain statutory damages of up to $250 per e-mail, up to $2 million in each state.
“You need to make sure that there is an opt-out description in the body of the e-mail that is clear and conspicuous,” said Eisenstein, whose firm, Brann & Isaacson LLP, Lewiston, ME, represents more than 70 DM companies. “You have to have a functioning opt-out mechanism that stays available for 30 days. Furthermore, you have to honor recipients' requests to opt out within 10 business days.”
Eisenstein's presentation also noted that the Federal Trade Commission has said it will promulgate regulations and receive comments regarding various issues, and that it will consider these questions:
· The test to determine the primary purpose of the e-mail, whether it is commercial within the provisions of CAN-SPAM.
· Whether the 10-business-day period for honoring an opt-out request should be adjusted.
· Whether a post office box constitutes a physical postal address under the law.
· The pros and cons of establishing a do-not-e-mail registry.
· Affiliate e-mails.
Though no private or class-action lawsuits are permitted, enforcement can come from the FTC, Internet service providers and the state attorneys general.
“Thus far the FTC has not brought a suit under the act, [and the] attorneys general have not brought a suit,” he said. “The only parties that brought suits … are the ISPs.”
Eisenstein also presented several myths about the law, including:
· The letters “ADV” must appear in the subject line.
· It establishes a national do-not-e-mail registry.
· Only the FTC can enforce the law.
· The law prohibits the sending of unsolicited e-mails.