Good morning TCPAWorld Duchess here to bring you another tale brought to you by the FTC.

I would hope that all major brands and marketers would know by now the requirements of the FTC’s CAN-SPAM Act. But from reading the FTC’s business blog post this week that is just not the case. Experian Consumer Services, which shares a parent company with Experian the credit bureau, was hit with a purposed settlement of $650,000 for violating the CAN-SPAM Act.

What exactly went wrong to trigger this penalty? According to the complaint filed by the DOJ and authorized by the FTC, there were a few missteps on Experian’s behalf. The emails that capture the FTC’s attention included statements like “This email was sent because it contains important information about your account”, and “This is not a marketing email – you’re receiving this message to notify you of a recent change to your account” and that there was “important information” about their account included in the email communication, however, they were just plain marketing emails trying to wear the cloak of an informational email, and poorly at that!  They were even so brazen as to state that even if a consumer opted out of marketing emails, they would still continue to receive their “important” emails.  Oh, and so you do not miss any of these “important” emails be sure to add us to your address book.

Crazy right, well here it is in black and white, two different samplings.

This email was sent because it contains important information about your account. Please note that if you have previously unsubscribed from Experian CreditWorksSM Basic, you will no longer receive newsletters or special offers. However, you will continue to receive email notifications regarding your account. To ensure that you’ll receive emails from us, please add support@e.usa.experian.com to your address book.

They had several different email campaigns in circulation. One was entitled “Confirm your Car” to check out free auto benefits, “Experian Boost” offered to instantly boost your credit score, and finally “Dark Web Scan” apparently scans over 600,000 data points to see if your information has been compromised. All these emails summed up to nothing important at all, but rather all sorts of upselling to the consumers who had set up a free membership that allowed them to place or remove security freezes on their credit reports.

Confirm Your Car

Experian Boost

Dark Web Scan

Aside from the deceptive email content NONE of these emails, marketing emails, offered the consumer an unsubscribe option which is required under the CAN-SPAM ACT for all marketing and promotional content.

In case you are unaware, like Experian, here is what the CAN-SPAM Act requires for marketing emails:

  • CAN-SPAM applies to all commercial emails, including B2B and specifically:
    • “any electronic mail message for the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,”
  • No misleading headers, To, From, and Reply-To must be accurate and identify the person or business sending the email
  • Do not use deceptive subject lines, subject lines must reflect accurate emails content
  • Email must be clearly and conspicuously disclosed as an advertisement, you do have discretion on how this is accomplished
  • Email must include your business address registered with the USPS
  • Every email must include a clear and conspicuous opt-out option that is easily identifiable, this can be facilitated via a link to a form (which can include a menu with an option for opting out) or through a specific company email designate to receive and take prompt action
  • Opt-out request must be processed within 10 business days, methods offered to request opt-out must be available for 30 days after the email was sent
  • Company is responsible for any actions taken by hired third-party vendors

You can check out the complete FTC Guidance HERE.

Time to check and recheck your marketing campaigns and ensure they are in compliance. If your content is both transactional and marketing, it’s a marketing email, include the unsubscribe. If your content is pushing the line of promotional or marketing in nature, it’s best to play it safe and include an option for recipients to unsubscribe. When in doubt make sure you reach out for marketing compliance guidance to get you on the right track and out of the crosshairs of the FTC. At Troutman Amin, LLP we are happy to provide compliance consulting services.


Leave a Reply