The CAN-SPAM Act of 2003 has not solved the spam issue, but it has put a lot of hurdles in front of legitimate email marketers.

What it has really accomplished is to give the Feds the tool to prosecute—a tool that didn't exist before. That's a good thing if it cuts down on the email in my inbox and addresses the need for tight corporate filters. The real challenge is for channel marketers trying to apply "brand-wide suppression" when dealing with VARs, partners and remote sales teams.

A Few Details About CAN-SPAM

Important to note is that the law, which became effective January 1, 2004, covers "commercial electronic mail messages." In other words, it covers any electronic mail message the primary purpose of which is a commercial advertisement or promotion of a commercial product or service (including Web site content operated for a commercial purpose).

A "transactional or relationship message"—email that facilitates an agreed-upon transaction or updates a customer in an existing business relationship with respect to an ongoing commercial relationship involving the purchase or use of products by the sender—may not contain false or misleading routing information, but otherwise it is exempt from most provisions of the CAN-SPAM Act. So, the takeaway here is that CAN-SPAM primarily deals with your lead or prospect list.

The Federal Trade Commission (FTC) is expected to issue new guidelines in September. Many companies, such as Kodak, have submitted feedback and recommendations on how this law needs to be clearer in its treatment of B2B communications.

As it exists today, CAN-SPAM applies to B2B communications in exactly the same way that it applies to B2C email marketing. It does not differentiate between large-scale outbound communications and a single email sent by a single sales rep. The key to determining whether it applies to you is to establish the primary purpose of the message—does it advertise your company's product or service?

Recommendations for Compliance

Here are some recommendations to ensure you comply with the Act:

1. All emails should include a way to unsubscribe. The sales rep could include something like this: "Let me know if you prefer not to get emails from me or XYZ."
   
   
2. All emails should include your physical address.
   
   
3. All email sender information should be accurate and reflect the server used to send the message. The bottom line is this: the recipient must be able to tell who sent it.
   
   
4. All subject lines should not be deceptive.
   
   
5. All senders must honor unsubscribe requests within 10 business days of the request. You might have your remote people forward requests to HQ for flagging if they cannot access your production or marketing contact database.

Numbers one and five are tricky if you are a channel company that relies on resellers and remote sales representatives. Following the letter of the law can be a very cumbersome proposition.

This is why some companies have adopted a "do as much as we can feasibly do without incurring enormous expense and inconvenience" approach.

Most are following these recommendations for outbound "corporate" marketing campaigns but not yet enforcing them upon distributed sales organizations for customers and leads that have opted in.

Cold leads are where the law should be followed in the strictest interpretation, rentals and so on. As most email marketers know, this is also the most expensive form of email marketing and has the lowest ROI.

As marketers, our drive to centralized databases to deploy integrated marketing campaigns, manage the lead generation process and improve reporting has additionally created the ability and necessity to manage our opt-out/unsubscribe/do-not-contact flagging of contact records.

This is easy when all campaigns and communications are done from "corporate." When leads are distributed to the field, however, there is increasing risk of noncompliance with CAN-SPAM. The details of what this means appear to still be a gray area, as are the penalties. Most agree that when a lead has responded to an offer and therefore "consented" to being contacted, it falls more into the "relationship" definition. The strictest interpretation, therefore, does not apply.

In discussing this problem with B2B technology companies in the mid-market (IMR) and in the large enterprise space (HP and Kodak), there appears to be a wait-and-see attitude. Organizations have put in place standards and requirements for their sales teams to avoid outright noncompliance, but they have not gone so far as to institute complete control over their sales team's communications.

For cold calls, the best advice might be to pick up the telephone until the FTC releases its September interpretation.