There are no general prohibitions against sending unsolicited advertisements or catalogs through the U.S. Mail. Similarly, you may send unsolicited e-mail; however, e-mail must adhere to certain federal requirements, detailed below. Faxes are a different story; you may not send unsolicited faxes unless you have established a business relationship with the recipient. Lastly, telemarketing is also not prohibited, but you cannot call a potential customer if that customer has registered with the national “Do Not Call" registry or if that person has asked your company not to call - the two exceptions where there is a business relationship are explained below. For all of these, with the exception of regular U.S. Mail, your company will be responsible if a direct marketer you hire violates these laws. You are expected to comply and you are expected to be sure anyone you hire complies, as well.
Overview of the Unsolicited Marketing Laws:
1. U.S. Mail Direct Marketing:
There are no laws prohibiting this method of advertising, regardless of whether you are sending mail to a consumer or a business. Thus, you can buy a list of targeted names or businesses and send mail to the names on the list. Advertising by regular mail is also not nearly as regulated. The only limitations on advertising by mail are the laws regulating all mail through the U.S. Postal Service and certain industry-specific requirements for advertising. [i]
It is also legal to send unsolicited targeted commercial e-mail, but e-mail must adhere to the requirements of the federal CAN-SPAM Act: [ii]
A. 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.
B. Don’t use deceptive subject lines. The subject line must accurately reflect the content of the message.
C. Identify the message as an advertisement. 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.
D. 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.
E. Tell recipients how to opt out of receiving future email from you. Your message must include a clear and conspicuous 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.
F. 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.
G. 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. [iii]
The CAN-SPAM Act “makes no exception for business-to-business email." [iv] The law applies to all commercial email and the penalties for violations of the CAN-SPAM Act can be up to $16,000.00. [v]
3. Fax Marketing:
The federal Telephone Consumer Protection Act (the “TCPA") and the Federal Communications Commission (“FCC") rules prohibit most unsolicited fax advertisements. “The rules provide that it is unlawful to send unsolicited advertisements to any fax machine, including those at both businesses and residences." [vi] The federal Junk Fax Prevention Act, passed in 2005, amended the TCPA by (1) adding an established business relationship (EBR) exemption to the prohibition and by requiring the sender of fax to provide an “opt-out" feature.
4. Telemarketing & Telesales:
It is legal to make unsolicited sales calls, so long as the consumer has not registered his or her number with the national “Do Not Call" registry or has not specifically asked your company not to call. [vii] There is an exemption for customers with whom you have an established relationship. You can call these customers up to 18 months from their last purchase, payment or delivery and up to 3 months from their last inquiry with your company. “By law, telemarketers must search the registry every 90 days and delete from their call lists any telephone numbers on the registry. A telemarketer who disregards the do not call registry could be fined up to $11,000 for each call." [viii] The Ohio Telephone Solicitation Sales Act also requires telemarketers to state their real name, their company’s name and their purpose for calling within the first 60 seconds of a call. [ix]
The law concerning phone calls, unlike the laws concerning email and faxes, only apply to consumers. Thus, business to business calls are not affected by the Do-Not-Call list. “The national Do-Not-Call list protects home voice or personal wireless phone numbers only. While you may be able to register a business number, [such] registration will not make telephone solicitations to that number unlawful." [x]
[i] See, for example, Ohio Rules of Professional Conduct, Section VII. “Information about Legal Services."
[ii] The CAN-SPAM Act: A Compliance Guide for Business, FTC Facts for Business, FTC.gov (2009) (Emphasis added) and 15 U.S.C. §§7701 – 7705.
[iii] The CAN-SPAM Act: A Compliance Guide for Business, FTC Facts for Business, FTC.gov (2009) (Emphasis added) and 15 U.S.C. §§7701 – 7705.
[iv] See 15 U.S.C. §7701 and The CAN-SPAM Act: A Compliance Guide for Business, FTC Facts for Business, FTC.gov (2009)
[v] Supra Note 3.
[vi] “Fax Advertising: What You Need to Know," Federal Trade Commission (April 26, 2011).
[vii] See 15 U.S.C. §§ 6101-6102 and Ohio Revised Code §4719.01.
[viii] The Do Not Call Registry, Ohio Public Utilities Commission (January 3, 2011).
[ix] Id and O.R.C. §4719.01.
[x] Unwanted Telephone Marketing Calls, Federal Communications Commission. http: //www.fcc.gov /guides/ unwanted-telephone-marketing-calls. (5/27/11).
Shannon G. Becker
The Law Office of Shannon G. Becker, LLC
P.O. Box 3663
Mansfield, Ohio 44907