CAN-SPAM Act

Key Takeaways

• The CAN-SPAM Act is a 2003 federal law governing commercial email. It requires accurate From, To, Reply-To, and routing information, a subject line that reflects the content, a clear disclosure that the message is an advertisement, a valid physical postal address, and a clear way to opt out.
• CAN-SPAM is an opt out law, not an opt in law. A broker may email a prospect who never subscribed, provided the message meets the disclosure and opt out rules.
• An opt out request must be honored within 10 business days, and the FTC treats each individual noncompliant email as a separate violation subject to penalties of up to $53,088.
• In Washington, RCW 19.190.020 and RCW 19.190.030 make a commercial email with a false or misleading subject line, or one that obscures its point of origin, a violation of the Consumer Protection Act, chapter 19.86 RCW.

What It Means

The CAN-SPAM Act (the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003) is the federal rulebook for commercial email, and it governs the mail a real estate firm sends to clients and prospects. It does not ban marketing email. It sets conditions on it. Any message whose primary purpose is to advertise or promote, which covers listing blasts, market updates, and farming newsletters, must carry accurate From, To, Reply-To, and routing information, a subject line that accurately reflects the content, a clear and conspicuous disclosure that the message is an advertisement, a valid physical postal address for the sender, and a clear explanation of how the recipient can opt out.

Two points trip up new licensees. First, there is no permission requirement. Emailing someone who never signed up is not itself a CAN-SPAM violation as long as the message satisfies the disclosure and opt out rules, which is the opposite of what most people assume the law says. Second, the sender cannot contract the liability away. Hiring a vendor to run the drip campaign leaves the firm on the hook, because the business whose services are promoted stays responsible. The FTC counts each individual noncompliant message as its own violation, so one careless send multiplies quickly. State Advertising rules stack on top of the federal ones rather than replacing them, and our guide to digital compliance for Washington brokers covers where the two meet.

How It Works in Washington

Washington layers two more requirements onto a broker's email. The first is licensing. WAC 308-124B-210(1) provides that all advertising or solicitations without limitation for brokerage services, to include internet-based advertising, web pages, email, newspaper, and other visual media, must include the firm name or an assumed name as licensed. A broker who markets under a personal team name or brand must, under WAC 308-124B-210(2), display the firm's licensed name in a Clear And Conspicuous manner alongside it, must not use a brand suggesting a separate legal entity such as Inc., LLC, or Corp., must not use words commonly understood to reference a firm such as realty or real estate, and must obtain advance written approval from the firm's designated broker. Our guide to Washington advertising requirements shows what a compliant footer looks like.

The second is the Washington Commercial Electronic Mail Act, chapter 19.190 RCW. RCW 19.190.020 bars any person from initiating, conspiring to initiate, or assisting the transmission of a commercial email from a computer located in Washington, or to an address the sender knows or has reason to know is held by a Washington resident, that uses a third party's internet domain name without permission, otherwise misrepresents or obscures the point of origin or transmission path, or carries a false or misleading subject line. RCW 19.190.030 declares that conduct a violation of the Consumer Protection Act, chapter 19.86 RCW, and states that the practices covered by the chapter vitally affect the public interest. RCW 19.190.040 sets damages to the recipient at $100 or actual damages, whichever is greater, and damages to an interactive computer service at $1,000 or actual damages, whichever is greater. A deceptive subject line in Washington is therefore both a federal problem and a state consumer protection claim the recipient can bring.

Example

Marisol is a broker at Rainier Coast Realty in Spokane. She buys a list of 4,200 email addresses and sends a market update with the subject line "Your home value report is ready" even though no report exists. The From line reads "Zip Code Values" with no mention of her firm, and the footer has an unsubscribe link but no street address.

Three problems, from three different rulebooks. The subject line is misleading, which breaks CAN-SPAM, and because those addresses reach Washington residents, RCW 19.190.020 and RCW 19.190.030 also make it a Consumer Protection Act violation, with RCW 19.190.040 setting recipient damages at $100 or actual damages, whichever is greater. The missing physical postal address breaks CAN-SPAM on its own. And leaving the firm name off the message violates WAC 308-124B-210(1), which is a Department of Licensing matter rather than an FTC one.

Marisol resends the campaign with the subject line "September Spokane market update from Rainier Coast Realty," the licensed firm name and the office street address in the footer, and an unsubscribe link her vendor processes within 10 business days. Thirty-eight recipients unsubscribe on day one, and she confirms all 38 are suppressed before the October send.

Common Mistakes and Exam Traps

• CAN-SPAM does not require permission before sending. It is an opt out law, not an opt in law, and answer choices requiring prior consent to email a prospect are wrong.
• The Do Not Call rules govern telephone solicitation. CAN-SPAM governs commercial email. Items often name one and describe the other's requirement.
• Hiring an email marketing company does not shift CAN-SPAM liability. The business whose product or service is promoted remains responsible.
• In Washington a marketing email must display the licensed firm name, not just the licensee's personal brand. WAC 308-124B-210 names email specifically, so the advertising rules apply to it the same as to a yard sign.