Readers of this blog may recall a prior piece in which we discussed the return of email marketing in the wake of intense regulatory action in the telemarketing space. However, because of Section 17529.5 of the California Business and Professions Code (“CBPC”), companies must be cautious when emailing to California State residents, especially with private litigants availing themselves of this statute to bring lawsuits.
California Email Marketing
Generally, email marketing regulation falls within the province of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM”). Enacted in 2003, CAN-SPAM aimed to reduce consumers’ receipt of false, misleading, or deceptive emails. Although CAN-SPAM generally preempts state laws that regulate email marketing, CAN-SPAM’s preemption provisions provide an exception for state laws which prohibit false or deceptive email marketing. California enacted Section 17529.5 of the CBPC, which makes it “unlawful for any person or entity to advertise in a commercial email advertisement either sent from California or sent to a California email address under any of the following circumstances: (1) The e-mail advertisement contains or is accompanied by a third-party’s domain name without the permission of the third party; (2) The email advertisement contains or is accompanied by falsified, misrepresented, or forged header information; (3) The e-mail advertisement has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”
Like CAN-SPAM, the California State law’s primary goal is to decrease the sending of unsolicited commercial email that is false, deceptive, or misleading. Unlike CAN-SPAM, however, the California State law permits a private right of action for individuals who receive unsolicited commercial email that otherwise violates the statutory provisions quoted in the preceding paragraph. Individuals may recover either actual damages or statutory damages of up to $1,000 per email, plus attorneys’ fees and costs if they prevail in a Section 17529.5 proceeding. Because the California State law allows for a private right of action, consumers have started to bring more lawsuits as companies transition from telemarketing to email marketing.
What If My Business Conducts Email Marketing in California?
In addition to CAN-SPAM, businesses engaged in email marketing must ensure that the marketing material that they send to California consumers: (1) comes from domains which are real and traceable; and (2) contains subject lines and header information which are valid and not misleading.
Email marketers are advised to hire experienced counsel to ensure that they comply with California State law, CAN-SPAM, and other applicable federal and state regulations.
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