Email Marketing Compliance for Ad Agency New Business

email newsletters can spam act

Can I buy email addresses and email those people that haven’t opted-in? – The List of do’s and don’ts on CAN-SPAM

Guest article by: Dave Currie, CMO, The List and CEO, Catapult New Business

This is probably the most commonly pondered and asked question by new business teams contemplating the implementation of a proactive new business program for their agency.

Over the years at The List and Catapult New Business, I’ve seen millions of messages sent through email marketing platforms to corporate marketers, without a single CAN-SPAM issue.

Perhaps new business people are a pretty ethical group? Or, perhaps orange just isn’t their best color?

You’ve probably heard people use the term CAN-SPAM and found yourself asking questions like:

  • So what’s CAN-SPAM?
  • How can I avoid being labeled a spammer?
  • Will I be prosecuted and sent to a federal prison and issued an orange jump-suit?

In short, yes you can buy lists and email people who haven’t opted-in.

There are however some guidelines that I’ve complied for you below to explain the CAN-SPAM act, help you avoid being labelled a spammer and having to talk to friends and family through Plexiglas.

I’ve also included a best-practice section on how to go about buying contact information for corporate marketers that includes their verified email address at end of this post.

Overview – The List of do’s and don’ts on CAN-SPAM.

Here are the rules you must follow to avoid being labelled a spammer. Read on for the expanded versions on each bullet point.

  1. Don’t use false or misleading header information.
  2. Don’t use deceptive subject lines.
  3. Don’t overtly advertise.
  4. Tell recipients where you’re located.
  5. Tell recipients how to opt out of receiving future email from you.
  6. Honor opt-out requests promptly.
  7. Monitor what others are doing on your behalf.

Overview – Best-practice for buying contact information for ad agency new business that includes corporate marketer email addresses.

  • Seek a provider that specializes in your industry, like The List
  • Confirm the provider doesn’t scrape social and web data to build their marketer database.
  • Never buy opt-in email addresses from anyone.
  • Ask your peers for a recommendation.

**Fair warning – this is a thorough overview of the area, with no effort to cut corners to be concise.

The Federal Law: CAN-SPAM

A little history lesson: At the end of the first session of the 108th Congress in December, 2003, the federal government passed an anti-spam law called the CAN-SPAM Act, an acronym for the tongue-twisting Controlling the Assault of Non-Solicited Pornography And Marketing Act.

Senator John McCain was a big proponent of getting this passed. Among its regulations, the CAN-SPAM Act focuses on requiring that unsolicited commercial email (often called “UCE”) be clearly identified as such and that consumers be able to opt-out of receiving more emails. This legislation covers all commercial messages, which the law defines as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” It does not apply to relationship (read: transactional) messages that meet their very-specific criteria.

For ad agency new business purposes, it’s best to assume all your messages are commercial, as it’s very easy to respect the following CAN-SPAM mandates. It also will take you a lot less time to simply arrange your messages in compliance with the CAN-SPAM regulations than it would be to wade through those regulations to figure out whether your newsletter has to comply or not.

Here are the CAN-SPAM rules – expanded for the complete guide to email marketing laws for ad agency new business.

1.     Don’t use false or misleading header information.

Your “From,” “To,” “Reply-To,” and routing information – including the originating domain name and email address – must be accurate and identify the person or business who initiated the message.

2.     Don’t use deceptive subject lines.

The subject line must accurately reflect the content of the message.

3.     Don’t overtly advertise.

The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement.

4.     Tell recipients where you’re located.

Your message must include your valid physical postal address. This can be your current street address, a post office box you’ve registered with the U.S. Postal Service, or a private mailbox you’ve registered with a commercial mail receiving agency established under Postal Service regulations.

5.     Tell recipients how to opt out of receiving future email from you.

Your message must include a clear explanation of how the recipient can opt out of getting email from you in the future. Craft the notice in a way that’s easy for an ordinary person to recognize, read, and understand. Creative use of type size, color, and location can improve clarity. Give a return email address or another easy Internet-based way to allow people to communicate their choice to you. You may create a menu to allow a recipient to opt out of certain types of messages, but you must include the option to stop all commercial messages from you. Make sure your spam filter doesn’t block these opt-out requests.

6.     Honor opt-out requests promptly.

Any opt-out mechanism you offer must be able to process opt-out requests for at least 30 days after you send your message. You must honor a recipient’s opt-out request within 10 business days. You can’t charge a fee, require the recipient to give you any personally identifying information beyond an email address, or make the recipient take any step other than sending a reply email or visiting a single page on an Internet website as a condition for honoring an opt-out request. Once people have told you they don’t want to receive more messages from you, you can’t sell or transfer their email addresses, even in the form of a mailing list. The only exception is that you may transfer the addresses to a company you’ve hired to help you comply with the CAN-SPAM Act.

7.     Monitor what others are doing on your behalf.

The law makes clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible.

The Penalties 

The Feds: Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $16,000 (capped at $2 million), which can add up fast, and makes it clear that non-compliance can be costly. Most lawsuits related to CAN-SPAM are related to fraudulent information (inaccurate from/to fields) and misleading subject lines. Also common are lawsuits due to violation of not handling opt-outs appropriately or clearly providing a method to opt-out. This is what landed Kodak a thirty-two-thousand dollar law-suit. What this means is that if you send commercial emails, and violate any of the rules above or cited in the legislation you could be sued for up to $2 million dollars.

And, there’s more.

State: While federal laws pre-empt conflicting legislature for state SPAM laws, in many aspects your state still has laws you must comply with. In fact, more than 20 states have passed anti-SPAM statutes in the past five years (a total of 34 states passed legislation affecting commercial email, in one way or another, prior to 2004). Here is a full list of these laws so you can get familiar:

ISPs: Internet Service Providers (ISP’s) are much harder on CAN-SPAM than the government is. What this means: if you send to recipients who have email accounts at major ISPs, you need to abide by the ISPs’ rules too, or they have the option to stop sending your email. You can usually find these rules at their postmaster pages. To aide in your email compliance awesomeness, I’ve compiled direct links for you:

Best-practice for buying contact information for agency new business that includes email.

1. Seek a provider that specializes in your industry.

Bulk data providers (Hoovers / / InfoUSA / NetProspex) rarely have the ability to provide access to the specific marketing contacts that you’re looking for with the degree of accuracy you need to be successful. You should be looking for a guarantee of email accuracy from a provider, with a consistent email verification rate of at least 90%. The List maintains verification rates even higher – check it out with a trial account here.

2.  Confirm the provider doesn’t scrape social and web data to build their marketer database.

There are hundreds of companies using technologies to scrape social and web contact information to build up databases to then sell. The problem with this ‘research’ methodology is that it’s simply unreliable, and your deliverability rates, and probability of being termed a ‘Spammer’ go up significantly. Always be thinking; right person, right time, relevant message.

Providers that have dedicated in-house research teams provide you the greatest value.

1.     Never buy opt-in email addresses from anyone.

No legitimate company will ever sell you a list of ‘opt-in’ email addresses. Anyone selling you lists of ‘opt-in’ email addresses is very simply a spam outfit. If you have been sold a list of email addresses which the seller promises are ‘opt-in,’ you have been conned. Selling third-party e-mail addresses is inherently contradictory to the concept of ‘opt-in.’
Legitimate providers will always talk openly about their research methodology and state the nature of their email contact fields associated to a marketer. 

2.     Ask your peers.

Like anything you purchase today, use social media and your professional network to check the claims of any provider before you commit.

Legitimate providers will always recommend you check their testimonials and ask-around.

Ok – so now you know the rules – what’s next?

To start a proactive ad agency new business program, you’re going to need to:

  • Make an investment in a sales intelligence platform like The List to save time and improve effectiveness – right person, right message.
  • Identify likely prospect candidates from an available pool of brands through an advanced search.
  • Get the accurate contact information for the people who control the brand’s marketing spend.
  • Get solid intelligence on the identified brands to begin crafting your relevance to them.
  • Design and implement a B2B marketing strategy with thought leadership at the center, distributed through a variety of media channels like; social media, email marketing, voicemail (yes this is a media channel too), direct mail, PR and speaking engagements.
  • There are a vast number of resources available for all these distribution channels – and if you’re thinking about using a marketing automation platform, I recommend making the investment in a mi-market solution like HubspotPardot or Marketo for the best email deliverability rates and dynamic content options.

photo credit: hegarty_david via photopin cc

About Michael Gass

Consultant | Trainer | Author | Speaker

Since 2007, he has been pioneering the use of social media, inbound and content marketing strategies specifically for agency new business.

He is the founder of Fuel Lines Business Development, LLC, a firm which provides business development training and consulting services to advertising, digital, media and PR agencies.


  1. Dave Currie says:

    Thanks for the opportunity to provide a guest post. Nice picture selection too – Check out the cast on the bloke’s leg! No need for crutches at 11,000 feet.

  2. Very informative article Dave. Thanks for sharing.

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