If you’re a marketer in California, there’s a good chance your emails are violating state law. The problem is that email marketing laws in the state of California are much stricter than federal laws, and they’re harming email marketers who are trying to stay compliant but seem to continuously step on someone’s toes with every move.
In this blog post, we’ll explain the situation and what you can do to make sure your emails are legal.
CCPA, California False Advertising Law, and CAN-SPAM.
Americans love to sue, it must be in our nature. But it’s no longer manageable when every word of an email is scrutinized. There’s CCPA (California Consumer Protection Act), their false advertising law (California Business and Professions Code § 17500), and the federal CAN-SPAM Act (
Controlling the Assault of Non-Solicited Pornography and Marketing). A triple whammy.
Let’s cover what each of these laws/acts does regarding email campaigns.
The California Consumer Privacy Act is a consumer data privacy law that gives Californians enhanced consumer rights and control over their personal information collected by businesses.
The CCPA requires businesses to provide clear and conspicuous notice of what data is being collected, the purpose of collecting such personal data, and how it will be used. Consumers have the right to access, delete, and opt out of the collection of their personal information. Businesses must also make sure they secure any customer data that they have collected.
In layman’s terms, the CCPA helps to protect California residents from getting emails they don’t want. It makes sure that companies only send emails to people who have agreed to get them. It also makes sure that companies tell people what information they will collect about them and how it will be used.
California’s False Advertising Law
California’s False Advertising Law, also known as the California Business and Professions Code § 17500, is a state law that prohibits businesses from making false or deceptive statements in any advertisement. This law applies to any medium used for advertising, including print ads, television commercials, radio advertisements, and email campaigns. It applies to direct mail and telemarketing campaigns as well.
Under this law, it is illegal for an advertiser to make any statement that misleads or deceives consumers into believing something that isn’t true. This includes making false or misleading claims about products and services or using bait-and-switch tactics in order to encourage people to purchase goods or services.
Businesses are forbidden from using words such as “free” or “guaranteed” in their advertising unless they can clearly prove those claims are accurate with supporting evidence.
To enforce this law, the Attorney General’s Office has the authority to seek injunctions against companies engaging in violations of California’s False Advertising Law and may impose civil penalties of up to $2,500 per violation per day depending on the severity and extent of the offense.
In addition, individuals who suffer losses because of false advertising may have a private right of action and seek damages through civil litigation if they can prove they suffered losses due to fraudulent practices by marketers.
The Controlling the Assault of Non-Solicited Pornography and Marketing Act is a federal law that was passed in 2003 to protect consumers from receiving unwanted, unsolicited commercial emails. It sets out requirements for sending commercial emails, including getting consent from recipients, providing an opt-out mechanism, disclosing who sent the message, including a valid physical address, and not using false or misleading subject lines.
The CAN-SPAM Act also requires emails to be labeled as advertisements if they are trying to sell something. If a company fails to comply with the requirements of this law, it can be fined up to $16,000 per email sent in violation.
How to Comply with CCPA, CA False Advertising Law, and CAN-SPAM
Email marketers can comply with the CCPA by:
- providing clear and conspicuous notice of what data is being collected,
- the purpose of collecting such data,
- and how it will be used.
Consumers must be given the right and ability for accessing, deletion, and submission of opt-out requests of personal data collection. Companies must also ensure they secure any consumer data that has been collected to avoid data breaches
Under California law, companies should refrain from making false or deceptive statements in any advertisement and must provide supporting evidence for any claims they make.
Additionally, marketers should follow the requirements of the federal anti-spam law when sending commercial emails, including:
- getting consent from recipients,
- providing an opt-out mechanism,
- disclosing who sent the message,
- including a valid physical address,
- and not using false or misleading subject lines.
Finally, email marketers may want to consider implementing best practices such as using double opt-ins and segmenting their email lists so that only people who have expressed interest in particular topics receive marketing emails about those topics. They can also use automation tools to monitor compliance with laws and privacy regulations related to email marketing.
Pay Attention to Your Subject Line!
Right now, a lot of marketers are under fire specifically for their subject lines.
The rest of the requirements to comply with Californian and federal law regarding email marketing are things you’ve been doing anyway—having an unsubscribe link, requiring an opt-in, disclosing data collection. These laws also affect your subject line AND the “from” part of your email.
You must not send emails with misleading subject lines.
Sounds simple, right? But a lot of marketers out there use the subject line to exaggerate something so people will open the email. That’s illegal!
Instead, you should use curiosity to your advantage. If you’re a supplements seller, then you’re more than aware of how to comply with the FDA and the FTC (Federal Trade Commission). It’s just like that. Making outlandish claims will take you straight to court.
Subject lines can be questions, “Still struggling to burn that last 20 pounds?” They can be cold, hard truths, “Thank you and goodbye”. Get creative, and whatever you do, don’t lie.
The “from” line matters, too.
Another oft-overlooked portion of an email that could get you into trouble is the “from” line. This has to say who it’s from. It can’t be a sentence, an ad, or some other text that doesn’t identify you.
However, you can add in a bit of extra text as long as your name is still present. Something like, “6-figure coach — John Smith”. As long as the name is there, CCPA compliance is achieved.
Don’t forget to add your parent company, too.
It’s not enough to just put your company. If you’re a subsidiary of a larger company, you have to state what that larger company is as well as add its contact information (address, phone number, etc.).
That may be an annoyance, but it helps protect customers from getting trapped with a company that burned them previously. And all it takes is a little disclaimer at the bottom of your email, so it’s not truly distracting.
You Are Responsible, and No One Else
Of the marketers that have been contacted by lawyers regarding violation of CA email marketing laws, the going excuses are along the lines of, “but that’s how it was given to me, I just sent it!”
That’s not a good excuse and you know it. Even if your affiliate manager, list manager, marketing team, copywriter, copy editor—whoever it is—provided the content and all you did was hit the send button, you’re still responsible.
Ignoring general data protection regulation and laws regarding privacy protection for consumers will, without a doubt, take a serious toll on your annual revenue. If at the very least indirectly due to court fees, lawyers fees, and legal advice.
Know the law, stay on top of CA email marketing compliance, and get your business to 7-figures.
Need help with that last part? DirectPayNet can help get your business to 6 figures and more by equipping you with a payment ecosystem that scales with you. We provide high-risk merchant accounts to all types of e-commerce business owners, linking you with a payment processor that simply won’t give you the hassle that traditionally comes with growing quickly.
If you’re curious to learn more about how to make a killer subject line for your emails, check out an interview we had with email marketing expert Kyle Dana.