The statute is not the inbox

Answer The statute is not the inbox. On August 18, 2015 the FTC published candid answers on CAN-SPAM. Identifying a message as an ad does not have to happen in the subject line if it is clear and conspicuous in the message. Prior consent waives only that identification duty. The statute does not require opt-in, and that silence is not a promise that a mailbox will accept the mail. This note is not legal advice.

The note that started this: Candid answers to CAN-SPAM questions, Federal Trade Commission, August 18, 2015.

Sellers hear the opt-in sentence and relax. The law, they say, lets them mail until someone says stop. Some providers let them try. The providers also throw the mail away, throttle the domain, or demand a complaint rate the statute never mentioned. Safe solo ads sellers comply with the statute and still ask whether the list wanted the mail. Those are two tests. Passing the first is the floor. It is not the placement.

The answers came from a staff conversation, years ago, and they are still the right corrective to a swipe file. Do not invent a dollar penalty in this note. Do not invent a subject-line keyword the FTC said was mandatory. Read the three limits they actually drew, and then remember the inbox is a private system with its own rules.

Does CAN-SPAM require the word ad in the subject line?

The FTC said on August 18, 2015 that the law does not require the ad label in the subject line. Identification has to be clear and conspicuous in the message. Deceptive subject lines are still illegal. This note is not legal advice.

Flexibility is not invisibility. Clear and conspicuous means a reader can tell the message is a pitch without a treasure hunt. Yesterday's note was about a brief. The day before was about a diary voice. The statute's flexibility on the subject line does not license either disguise. A subject that implies a personal note, or a parcel, or a government notice, is a deceptive subject whether or not the body later whispers that it was an ad.

Put the identification where it will be seen. The body is allowed. The body is not a junk drawer. If the first screen of the email could be mistaken for something else, you have used the flexibility to hide. The FTC's sentence gives you a choice of place. It does not give you a choice about whether the commercial nature is noticeable.

• The message is identifiable as an ad without a hunt.
• The subject line does not pretend to be a personal emergency.
• The physical address is in the message.
• The opt-out is real and easy to find.

What does prior consent actually waive?

The FTC said prior affirmative consent waives only the duty to identify the message as an ad. Accurate headers, a non-deceptive subject, a valid physical address, and an opt-out still apply.

This is the sentence affiliate buyers misread. They collect a checkbox somewhere in the past and conclude the whole statute stepped aside. The FTC's answer is the opposite. Consent, of that specific kind, turns off one requirement. The header still has to tell the truth. The subject still cannot deceive. The postal address still has to be there. The person still gets to leave, and the mechanism still has to work. A solo ad to a list that consented to the list owner is not a vacation from those duties for the guest offer.

Ask what the consent said. Consent to hear from the list owner about a topic is not automatically consent to a stranger's pitch. Even when the mail is lawful, the reader can still be surprised. Surprise is how complaints start. The statute's waiver will not argue with a spam button.

Does the lack of an opt-in rule mean a solo ad will be delivered?

No. The FTC said the statute does not require opt-in. Mailbox providers can still refuse mail people did not ask for. The statute's silence is not an inbox safe harbor.

The candid answer is that, in general, a sender who follows the initiator rules can keep mailing until the recipient opts out. That is a statement about the statute. Gmail, Yahoo, and Microsoft are not the statute. They can require authentication, one-click unsubscribe, and a complaint level the law never set. They can refuse a domain that is legal and unwelcome. A seller who waves the 2015 answer as a delivery guarantee has changed the subject in the middle of the sentence.

Use the answer for what it is. A map of a few duties, including the ones consent does not erase. Then go back to the list. The inbox does not owe you the statute's silence. It owes its users a quieter folder. Mail accordingly.