Businesses in most industries have easy access to highly effective marketing tools like Facebook advertising and Google AdWords, but businesses operating in the cannabis industry are banned from those affordable ways to connect with their target audiences. With so many marketing tactics unavailable to cannabis businesses, email marketing is critical to the success and growth of every cannabis business and ancillary business.
The problem with email marketing for many companies, regardless of the industry they operate in, is leveraging email to drive sales and business growth without breaking any laws that could get them in trouble. In fact, breaking these laws could lead to hefty fines and criminal penalties, and yes, those penalties could include jail time.
Bottom-line, if you’re using email marketing to promote your cannabis business or marijuana-related business, you need to know the relevant laws and follow them extremely closely.
Specifically, you need to understand the CAN-SPAM Act of 2003 and how it affects your email marketing initiatives.
What is the CAN-SPAM Act of 2003?
The CAN-SPAM Act applies to commercial email messages, but the term “commercial message” is broader than you might think. It’s also not specifically defined in the written law, which makes things even more challenging.
The safest interpretation of the law is to assume that any email message which directly or indirectly promotes a company, brand, product, or service is commercial.
For example, the CAN-SPAM Act states that messages promoting content created by or for a company are considered to be commercial. The law lists examples like blog posts, free ebooks, mail messages, educational articles, and tutorials to demonstrate types of content that would be commercial because they indirectly promote the company that created, published and/or sent them.
In a nutshell, any non-transactional email message that a company sends could be considered commercial based on the laws of the CAN-SPAM ACT.
If your business is caught violating the rules of the CAN-SPAM ACT, you could face some steep penalties. In fact, you can be penalized for every email violation. The fine for each separate violation can go up to $40,654.
It’s also important to keep in mind that if your messages are found to violate any other laws, like deceptive advertising laws, you could also face more fines and criminal penalties, which include imprisonment.
How to Avoid Violating the CAN-SPAM Act of 2003
There are four main categories of rules that you need to understand as you develop your email marketing messages to ensure you don’t violate the CAN-SPAM Act. Create a checklist for yourself and use it to confirm every message you send is in compliance.
1. Email Inbox Information
Email inbox information refers to the information your message recipients see in their email inboxes before they open it, including the “To,” “From,” and “Reply To” information. This information must not be misleading or fake.
In simplest terms, recipients should be able to tell who the message is from instantly, which includes not just the person or company name used in the “From” field of your message but also the originating domain (i.e., this should be your business’ web domain) and routing information. Don’t try to trick anyone into thinking your message is from anyone other than your company.
The subject line of your email message must also comply with the CAN-SPAM Act. It must clearly describe what the content of the message is about. Clever, vague, and inaccurate subject lines could violate the law and get you into legal trouble, so be clear and specific.
2. Message Content
There are two things that all of your email messages must include within the message content: your location and an ad disclosure.
In terms of your location, it’s easy to comply with this part of the law. You’re required to include your company’s physical address in your messages. This must be a valid postal address registered with the U.S. Postal Service or a commercial mail receiving agency that was established under postal service regulations. Just include this in the footer of your email messages, and you’ll be in compliance.
The ad disclosure part of the law isn’t as specific, but the safest interpretation is to conspicuously explain in your message that it’s promotional or an ad. This applies even if the message is not directly promotional.
3. Unsubscribes and Opt-outs
Every email marketing message that you send has to include an easy way for recipients to unsubscribe from your list so they don’t receive marketing messages from you in the future.
This opt-out has to be obvious and cannot include any conditions or extra steps beyond clicking a button or link and confirming that they want to unsubscribe. For example, you can’t require that someone provides personal information (other than their email address) or pays a fee in order to unsubscribe.
If someone unsubscribes from your message, you must adhere to the following opt-out rules:
- You must honor opt-outs within 10 business days.
- You must not transfer or sell the email address of anyone who opts out (unless you’re transferring the email address to a company that is helping you comply with the CAN-SPAM Act).
- You must allow recipients 30 days to opt out after you send each message.
- To complete their opt-out, you must not require a recipient to visit more than one web page or do more than simply reply once to the message you sent to them.
4. Third-Party Compliance
If you work with an ad agency, freelancer, or anyone else to help you with your email marketing, it’s still your responsibility to ensure your messages and actions adhere to the CAN-SPAM Act.
There are two things you should do to stay out of trouble when you hire a third party to manage all or part of your email marketing initiatives. First, make sure you only work with providers who can demonstrate that they know the laws and are committed to following them. Second, monitor everything they do for you to ensure your messages always comply with all relevant laws.
Key Takeaways for Cannabis Businesses about Email Marketing Laws
Remember, email marketing laws weren’t created to punish businesses. They were created to protect consumers. It’s your responsibility as a business operating in the marketplace to follow all of the laws that apply to you, which includes email marketing laws.
I cover the CAN-SPAM Act of 2013 and more in my book, Ultimate Guide to Email Marketing for Business, but keep in mind, there may be additional laws in your state related to cannabis business email marketing, so do your homework, learn the laws, and follow them. It’s far less expensive to follow the laws now than it is to pay fines and try to get out of trouble later.
