U.S. Congress Planning Broader Email & Digital Marketing Enforcement and Regulatory Power for the FTC

Written on June 1st, 2010 | Posted by Stephanie Miller in Can-spam, Ftc, Regulations, Eec webinar

The recession has made citizens more attentive to scams, especially those that promise easy money or frighten people about the banking system.  This accelerates the already large regulatory agenda of the U.S. Federal Trade Commission (FTC), whose role as a “civil prosecutor” includes regulating and enforcing protections from online offers, advertising and email marketing.  Congress is also stepping up, and two major initiatives around privacy protection and the role of the FTC are in active play.

Partnering with all of us in the email industry and watching to make sure we properly self-regulate remains a key component of the FTC’s plans, says Lois Greisman, Director, Division of Marketing Practices for the FTC Bureau of Consumer Protection, who joined our annual Email Experience Council legislative update webinar on May 19th.  “Our goal is to stop fraud and scams as quickly as possible, to shut down offenders, and, where appropriate, seize assets and reimburse consumers,” she said in the webinar.

The recording of the full event is available in the eec Research Store and is free for eec members.

The U.S. CAN-SPAM Act of 2003, which regulates permission practices for email marketing, continues to be a key anti-fraud tool for the FTC.  Greisman noted several successes in prosecuting spammers and other deceptive practices and said enforcement continues to be a major priority.  “CAN-SPAM has worked well to level the playing field among legitimate online marketers,” she said.  She also added that she was not aware of any active proposal by the FTC or Congress to expand or change the law.

However, there are two active proposals of new legislation that could have significant impact on email marketing and the email industry as a whole.

  1. Online Privacy Protection Bill A “Discussion Draft” of a bill to require notice and consent to any individual PRIOR to collecting or using personal information was released in early May in the US House of Representatives from Representatives Rick Boucher (D-VA) and Cliff Stearns (R-FL).  Industry and consumer groups alike are not happy with the draft, including the DMA.  Although it may seem at first that the so-called Boucher Bill was just about online behavioral advertising conducted by large marketers; it turns out that it’s very broad and far-reaching on privacy and data security.  During the webinar, Jerry Cerasale, VP, Government Relations for the DMA, gave a very good overview of coverage, exceptions and terms of notice.  Basically, it impacts nearly all kinds of “first party” senders as well as any other company that has access to that data as a “third party.”  It proposes coverage of an extensive list of “unique and persistent” personal data on consumers.

    “One potentially bad impact this could have on the email industry concerns the scope of covered data, including email address, IP address, and other unique, persistent identifiers,” says panelist Tom Bartel, CIPP, VP, Receiver Services at Return Path.  “If the exceptions for transactional and operational purposes and for service providers are not effective and clear, this bill could interfere with many industry collaborations.  This includes IP-based reputation systems – data that determines if email messages reach the inbox or not.  It may also impact the operation of Feedback Loops provided to email senders by mailbox providers like Yahoo! and Hotmail.  These feedback loops are a key component in how the industry keeps bad actors out of the email ecosystem."

    Both Representatives Boucher and Stearns have indicated a willingness to work with industry and have requested comments on the bill, due by June 4th.  Cerasale said the DMA will be commenting.

  2. Expansion of FTC Powers: Congress is also considering significantly expanding the powers of the FTC as part of the Wall Street Reform and Consumer Protection Act (HR 4173).  There is not a corresponding bill in the Senate, although Cerasale said in the webinar that one may be introduced later this year. 

    Part of the proposed regulation would give the FTC “unbridled authority” to create rules around “unfair or deceptive acts or practices” for many industry sectors.  Cerasale expressed concern about this, and said that more checks and balances are needed.  It is also unclear how this expansion will impact emerging technologies like social or mobile, he said.

    Another part of the proposed bill increases the FTC’s enforcement powers to seek civil penalties.  “That may be helpful in catching spammers and other abusers of email marketing,” said Rick Buck, CIPP and VP, ISP Relations and Privacy at e-Dialog.  “Marketers who feel they are exempt from prosecution because they are legal under CAN-SPAM may be following the letter of the law, but not the spirit.  I encourage everyone to go beyond the legal requirements and aim to provide email experiences that are welcome and engaging to subscribers.”

    The FTC’s Greisman said only that, “We welcome any support from Congress that helps the agency be more effective and efficient.”  There are some “tools that we lack which Congress may grant us the power to use,” she said.

    A third element to this proposed legislation is on responsibility/liability of the delivery provider (broadcast vendor, ESP, MTA Vendor) if their clients do not follow CAN-SPAM or other regulations.  “This aiding and abetting aspect is very concerning,” said webinar panelist, Dennis Dayman, VP, Privacy & Online Security at Eloqua.  “Blurring the lines between purveyor and sender may place an undue penalty on others in the ‘chain of responsibility’ for all brands involved in online advertising or other online acquisition efforts, like third party email senders and publishers,” Dayman said.

Greisman also reported in the webinar that there is no significant update on the behavioral targeting protection guidelines that the FTC has had out for comment for over a year. “Nothing will happen without input from industry,” she said.  Since the mandate from the FTC has been, “self regulate or else,” the webinar panelists Buck, Bartel and Dayman had a number of suggestions for marketers to follow best practices, including:

  1. Ensure transparency in disclosure and notice of permission and use of data.
  2. Be very clear about opt out vs. opt in.  CAN-SPAM requires only an opt-out, but that is the “bare minimum,” Buck advises.
  3. Update your Privacy Policy and provide prominent links.
  4. Audit your data usage practices.
  5. Be clear on use of data in all web forms and at the point of collection/sign up.

Marketers and everyone in the email industry can support the FTC, Greisman said.  She suggests:

  1. File a complaint.  When those complaints are also referred by the DMA, they are particularly helpful, Greisman said.
  2. Make sure your opt out mechanisms are working.  (e-Dialog’s Buck recommends checking this at least annually, and preferably monthly.)
  3. Be clear about the sender and the advertiser relationships.  (Return Path’s Bartel recommends first party senders consider “framing” the content from third parties or advertisers and clearly distinguish between editorial (original content) and advertising.)
  4. Keep data clean, particularly around new sources.  (Eloqua’s Dayman also recommends care around affiliates’ use of data.)

The legislative update webinar was sponsored by Eloqua, e-Dialog and Return Path, with technology sponsor GoToWebinar.  The recording of the full event is free for eec members.  More details on these and other legislative issues important to digital and direct marketers is in the DMA’s quarterly government affairs newsletter, Politically Direct.


- Stephanie Miller
Return Path & eec

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Overheard: Marketers Still Struggle With CAN-SPAM Compliance With 3rd Party List Rental

Written on May 21st, 2009 | Posted by admin in Can-spam

During the eec List Growth & Engagement Roundtable meeting this week, several DMA/eec members had a fascinating conversation about how to define consumer intent under CAN-SPAM as it relates to opt out for third party messages. The rules amended to CAN-SPAM which went into effect in July of 2008 say that there only needs to be one opt-out per message, and provides some guidance on the definition of the “sender” and “primary sender.”

“Listen” in with me….

Arend Henderson of Q Interactive, an online consumer site that has a very large email list rental business: It’s about the permission grant. If the message is from PublisherA, and the Friendly from is the publisher, along with the message header and footer – and significantly, the permission grant is with the publisher; but then the full message promotes AdvertiserB, then the opt out under CAN-SPAM should be from the sender and list owner, who is PublisherA.

Stephanie Miller (me) of Return Path, an email deliverability and performance company: The panel of privacy experts who spoke at the recent eec/DMA webinar with the FTC interpret the legislation that the opt out should be provided by the advertiser.

Arend: We interpret this as a protection of the consumer interest. We, the publisher, own the list, we own the relationship, and we care about those relationships. We believe that the opt out should be from the publisher, not the advertiser. It’s our job to send subscribers messages.

Kim Santos, Reader’s Digest: I feel the opposite. The opt-out has to be on the side of the advertiser. In list rental, where the advertiser is the sole focus of the message, that is what drives the unsubscribe request. If I’m a consumer, then I don’t want the AdvertiserB advertisement. The subscriber wants out of the AdvertiserB messages. If the opt out is only with PublisherA, then AdvertiserB could just go rent another list from another publisher. It’s a penalty for those subscribers who are on a lot of lists.

Arend: We feel strongly that the message is not from AdvertiserB. The permission grant is with us, the publisher.

Luke Glasner of Rodman Publishing: If you want to opt-out from AdvertiserB, you should be able to opt-out of those specific messages of the advertiser from PublisherA. The publisher like Rodman provides the opt out and we offer to manage the suppression file for advertisers who rent from us multiple times. Also for first time users we request suppression files - and we don’t charge extra for them. Personally, I don’t think list renters should charge to run a suppression file - since the person that benefits the most from reducing spam complaints is the list owner, even more so than the consumer of that email. It’s not about protecting consumers from AdvertiserB in other areas of the Internet. If I walk around and see an AdvertiserB billboard, does that violate the opt-out? Does my email opt-out mean that I won’t ever see an ad on the street or on TV or on a website?

Kim: No of course not, but there is so much transparency in email than in other channels. You can’t suppress ads in those other channels, but in email you can. I as a publisher and someone who cares about my subscribers have a responsibility to protect my consumer. So I make sure that if you don’t want to see AdvertiserB ads, you won’t see them from me, ever.

Luke: I can only be responsible for my email program, not actions of every person that engages in online advertising. I do feel we have a duty to respect our readers and to give them control over their inbox. It is up the subscriber to tell me how much they want to engage with me. And it is up to me to respect their wishes. I think that email is privilege granted to senders by their subscribes not a right. Based on my experience I think that most consumers would agree with that.

Kim: What about when there are two opt-outs? One each for the advertiser and for the publisher? We often see that, and sometimes offer it.

Arend: Consumers don’t think in our terms, they don’t know why there are two opt-outs. They don’t know who is “sender” under the law. This is why we never let the advertiser put AdvertiserB in the friendly from line. The messages come from Q Interactive, which is the brand you know and gave a permission grant to.

Luke: I will tell you what consumers do when they see two unsubscribe links. They go to the top of the message and click the Report Spam button. They won’t bother to figure it out. It’s not worth it to us as a list owner to work with advertisers who drive a lot of unsubscribe requests or complaints (when someone clicks the Report Spam button).

Arend: We agree. We do not work with those kinds of advertisers at all or at least for very long.

Luke: And the other side is true as well. Sometimes, the person who is sending this message and the sales person at the list owner have different agendas. If you are a buyer, be sure that the list owner can actually do what they promise.

Kim: We view this as a partnership. We want our advertisers to succeed. We had to put in an actual, official corporate marketing role so that we have an ombudsman around this area. That has helped to eliminate confusion.

Stephanie: How do you handle newsletters with multiple ads?

Kim: We treat these differently than full page email broadcasts. In this case, the opt-out is with Reader’s Digest, the sender.

Arend: We do the same thing.

Luke: We also follow the same for our newsletters. An email newsletter’s purpose is to provide (hopefully) engaging content to the reader. We support the newsletter financially by selling ad space so we can continue to provide our readers with newsletters.

- Stephanie Miller, Return Path

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Weekly Whitepaper Room Refresh

Written on November 17th, 2008 | Posted by admin in Can-spam, Holiday marketing, Landing pages, Weekly whitepaper room refresh

Every week the EEC adds new content to its Whitepaper Room. Here are the latest additions:

eec: Top Ten Takeaways from the Email Compliance Seminar
Email Compliance: The Foundation of Reputation and Deliverability

Listrak: 221 Email Marketing Do’s and Don’ts
Best Practices Reference Guide

Vidi Emi: Holiday Guide 2008
Six holiday email tips exposed

Email Checklist Series: Landing Page Checklist
This checklist shows you what to check to maximize the user experience and your bottom line with landing pages.

*Have a whitepaper you’d like to contribute? Email it to

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Two-Click Survey Results: Are you in compliance with the new CAN-SPAM rules that went into effect in July?

Written on August 11th, 2008 | Posted by admin in Can-spam, Two-click survey results

The answer…
45% –> Yes, because the new rules didn’t require any changes.
34% –> Yes. We’ve made the necessary changes.
2% –> No, but we’re evaluating what changes are needed.
19% –> No. We weren’t aware that new CAN-SPAM rules were issued.

Thanks to everyone who participated in this unscientific survey.

Are you surprised by the results? Share your comments below.

Also, visit the eec homepage to answer the latest Two-Click Survey question:
How long is too long to go between sending emails to a subscriber?

–>See more Two-Click Survey Results.

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Written on May 21st, 2008 | Posted by admin in Can-spam, The email advocate, Eec member initiatives

From the eec’s Member RoundtablesLast week the Federal Trade Commission announced its approval of a “new rule provision under the CAN-SPAM Act,” and it was a long time coming—fully 3 years after the Commission first issued the May 2005 discretionary Notice of Proposed Rulemaking (NPRM) that lead up to it.

I’m not going to spend time here going through all the rules and “rulings”—they’re relatively straightforward and you can read about them here. Instead, I want to call attention to what I view as the most important victories our industry gained here:

● The FTC preserved the 10 business day opt-out period. In 2005 they had proposed reducing it to only 3 business days.

● The FTC made it easier for marketers to assign a single “Sender” when it comes to “multiple advertiser” campaigns. The perceived “grey area-ness” of law on this issue had been a big concern for many firms.

Concerted industry advocacy—which is so core to the mission of the eec and DMA and their members—played a central role in last week’s final outcome. We are also fortunate that the FTC was so open to hearing our views and so interested in learning about the inner-workings of the industry.

More than a hundred of us submitted formal comments to the FTC, and many even met with agency staff to voice our perspectives and concerns about the NPRM in person. And in the official Federal Register notice detailing the new rule provision, the impact of our collaborative efforts is apparent throughout. See for example, on page 81, where the Commission notes:

…the time period for processing opt-out requests required by legitimate commercial emailers varies, and often exceeds three business days depending upon a number of factors, including the size of the business, the existence of third-party marketing agreements, and the maintenance of multiple email databases.


Approximately 100 commenters addressed the issue of whether the period for opt-out compliance should be reduced. The vast majority—over 85%—opposed reducing the time frame to less than 10 business days.

Bottom line: Your voice can and does need to be heard to ensure that the email marketing landscape continues to grow and prosper—and that your consumers have the best possible email experiences when doing business with your brands.

The FTC may have issued the last of its CAN-SPAM rules but the members of the eec have a lot more advocating to do. We need to get more ISPs up-and-running with authentication, accreditation and reputation protocols. We need more “unsub” buttons and feedback loops.

My co-chair Robb Walters of Costco Wholesale and I would love to hear your thoughts. What else do we need, and what do you think it will take for us to get there? Comment here or email us, and stay tuned for information about our next Advocacy Roundtable meeting.

—eec Advocacy Roundtable co-chair Jordan Cohen of Goodmail Systems

–>Read other issues of the The Email Advocate.

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THE EMAIL ADVOCATE: HGH—It's Not Just a Baseball Problem

Written on February 22nd, 2008 | Posted by admin in Can-spam, Regulatory concerns, The email advocate, Eec member initiatives

From the eec’s Marketing RoundtablesEarlier this month a federal judge ordered a Las Vegas-based company to pay a whopping $2.5 million fine for making false advertising claims and sending illegal email messages in violation of the FTC Act and the CAN-SPAM Act. The company was sending unsolicited email to people promoting human growth hormone (HGH) related drugs (you know, the stuff that Roger Clemens never took).

The judge found that the defendants violated the FTC Act (which outlaws fraudulent and deceptive business practices) because their ads falsely claim that the drugs cause rapid, substantial and permanent weight loss, in addition to having anti-aging qualities.

But what makes the case most interesting for our Roundtable’s members, of course, is the CAN-SPAM component. The violations cited by the FTC are very basic; they’re not “high-tech” offenses such as using open relays or forged headers to physically distribute spam. What this particular company got hit for was, in large part, three very simple CAN-SPAM violations: (1) using misleading subject lines; (2) not including a valid postal address in their emails; and (3) not including—or facilitating—opt-out functionality.

So for anyone who ever doubted that the CAN-SPAM Act had “teeth,” make no mistake about it: The FTC can and will make use of the full scope of CAN-SPAM to bring cases against offenders, and it ain’t hard to do so.

Our advice: Never overlook the basics. Check, check and check again to make sure that your email programs are 100% compliant. Make sure strict governance and procedures are in place. Because all it takes is one untrained new email marketing associate to click “send” without including a postal address and the FTC will come knocking on your door.

You can wag your finger at the camera and claim “misremembrance” all you want, but regardless of whether you’re pushing HGH in baseball locker-rooms or email inboxes, no one’s going to believe you.

—eec Advocacy Roundtable co-chairs Jordan Cohen of Epsilon and Robb Walters of Costco

–>Read other issues of the The Email Advocate.

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Written on January 30th, 2008 | Posted by admin in Can-spam, Regulatory concerns, The email advocate, Unsubscribe practices, Eec member initiatives

From the eec’s Marketing RoundtablesWhat is the status of the FTC’s CAN-SPAM rulemaking and is the agency going to reduce the opt-out timeframe?

It’s already been more than two-and-a-half years since the FTC issued its discretionary CAN-SPAM Notice of Proposed Rulemaking (NPRM) in which the agency proposed, among other things, to reduce marketers’ allowable opt-out processing timeframe from 10 to three business days.

At last summer’s DMA Email Policy Summit, FTC Spam Coordinator Sana Chriss told attendees that “a team is in place,” and the FTC was working on finalizing its rules. However, at the same time Chriss noted that, because the rulemaking is discretionary, it’s up to the agency as to if and when final CAN-SPAM rules are issued at all, and if so what they’d ultimately say.

So will the opt-out timeframe be reduced? Nothing can be said for certain, but it is encouraging that Chriss acknowledged at that meeting that the vast majority of the 151 organizations who submitted comments to the agency in response to its NPRM described operational challenges that would make it overly burdensome to comply with a 3-day opt-out. You can review those comments for yourself here.

Another positive development has been the agency’s December 2007 report to Congress on the current state of the spam problem. In its “Next Steps” section, the document made no reference to reducing the opt-out timeframe, instead looking to technological developments like email authentication, collaborative government-industry initiatives and consumer education programs as more promising anti-spam measures.

So what should marketers do?

Stay “in-the-know.” Keep in mind that the opt-out period still could be reduced, and closely follow developments on the Hill as relates to any changes to CAN-SPAM. One way to make sure you’re not out in the cold when it comes to knowing what to comply with and how to do so is by participating in the eec’s Advocacy Roundtable! Members can sign up today by shooting an email to Ali Swerdlow at Not an eec member yet? Ali can help you with that too!

Make opting-out fast and simple. Some very reputable marketers have some very legitimate reasons for needing a full 10 business days to process opt-outs, and it’s essential that we preserve the status quo in that regard. That said, for the sake of maintaining positive customer relationships and improving deliverability, we always recommend processing opt-outs as fast as possible. Making the process shorter for your company will also put you on solid footing in the event that the FTC does eventually decide to reduce the opt-out timeframe.

We’d like to hear your thoughts on this subject. How would a reduced opt-out timeframe impact your company and/or clients? Also, has the lack of decisive clarity on additional outstanding CAN-SPAM issues such as “forward to a friend” and “multiple sender” campaigns been an impediment to your marketing efforts? Let us know by commenting below.

—eec Advocacy Roundtable co-chairs Jordan Cohen of Epsilon and Robb Walters of Costco

–>Read other issues of the The Email Advocate.

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Retail Email Unsubscribe Benchmark Study: Executive Summary

Written on January 24th, 2008 | Posted by admin in B2c marketing, Can-spam, Unsubscribe practices

While major online retailers do a great job of honoring unsubscribe requests quickly, there’s plenty of room for their opt-out processes to improve—most notably in the areas of providing subscribers with alternatives to opting out and of lowering barriers to opting out. For instance, only 66% of retailers use their opt-out processes to engage subscribers in order to address the issue causing them to want to opt out—and few do more than a superficial job of it. When looking at opt-out barriers, only 9% of major online retailers employ a one-click unsubscribe process, while another 35% easily could, but don’t.

Those are a couple of the key findings of Email Experience Council’s first annual Retail Email Unsubscribe Benchmark Study, which looked at the opt-out practices of 94 major online retailers. The study looks at trends in the opt-out process itself, including the alternatives to opting out, opt-out methods and friction in the unsubscribe process; and examines the honoring of opt-out requests, including CAN-SPAM compliance.

“Email is a relationship channel, and opting out of the relationship is just another step in the lifecycle,” says Kara Trivunovic, director of strategic services at Premiere Global Services Inc., the sponsor of this study. “Ignore it at your own peril.”

Increasingly one of the most important benchmarks for your unsubscribe process should be the single click of the “report spam” button. Some consumers already regularly use it to unsubscribe from email that they no longer want. So if your process becomes confusing or cumbersome, consumers know they have an easy-to-use fallback. That makes it more important than ever to have a frictionless opt-out process.

It also makes it more important to honor opt-out requests quickly, as delays increasingly look like failures. Thankfully, more than 86% of retailers honored opt-outs within 3 days, with most of them effective immediately, as evidenced by the number of emails received after opting out. Another 4% honored opt-outs within 7 days, and 3% more within 14 days. One percent took more than the CAN-SPAM-sanctioned 14 days to honor unsubscribes, and another 3% of retailers had their opt-out processes fail.

Other key findings from the study include:

• 73% of retailers sent no more emails after receiving an opt-out request.

• 16% of retailers give those trying to opt-out an opportunity to reduced the frequency at which they receive emails.

• 17% of retailers solicited feedback from those that had opted out

• 4% of retailers were in violation of the CAN-SPAM Act of 2003 by either failing to honor opt-outs or taking longer than 10 business days to do so.

Get the Full Report
Visit the Whitepaper Room to download the full 30-page report, which is free for eec platinum members, available at a discount to eec gold and silver members, and available for $179 for non-members. Not a member? Learn more about becoming a member of the Email Experience Council.

And as part of a special promotion, attendees of the eec’s Email Evolution Conference can receive the study for free. Visit for more information and to register.

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Retail Welcome Email Benchmark Study: Executive Summary

Written on September 27th, 2007 | Posted by admin in B2c marketing, Can-spam, Welcome emails

Welcome emails have historically had significantly higher open rates than regular emails. These messages are key to setting expectations with new subscribers and communicating the brand promise. Yet, only 72% of major online retailers send out welcome emails. That’s the top line finding of the Email Experience Council’s second annual Retail Welcome Email Benchmark Study, which is a follow-on to our 2007 Retail Email Subscription Benchmark Study, which examined the subscription practices of 122 of the largest online retailers. In this Welcome Email Study, we looked at the welcome emails that were sent as a result of those subscriptions.

“Welcome emails should set the tone of the program and the expectations of the recipient from an aesthetics and content standpoint,” says Kara Trivunovic, director of strategic services at Premiere Global Services Inc., the sponsor of this study. “It is said that you never get a second chance to make a first impression—and that adage holds true to the email channel as well. Properly executed welcome messages actually create anticipation in the recipient for the next message.”

In 2006, only 66% of major online retailers sent welcome emails. With 72% sending welcome emails this year, it appears that more retailers are recognizing the value of these critical emails.

This report shows that many retailers are still missing out on the opportunity to use those emails as a selling vehicle and relationship-building vehicle.
Instead of engaging subscribers with incentives and links to products, departments, loyalty programs, catalogs and other shopping-related material, a great number of the largest online retailers simply say hello and leave it at that.

However, there was some improvement on this front over the past year. In 2007, 98% of retailers’ welcome email now containing a link to their shopping site (up from 88% last year), 33% containing store locators (up from 31%) and 14% containing links to catalog information (up from 6%).

Over the past year, more retailers have also made their welcome emails CAN-SPAM compliant. This year 58% of welcome emails were CAN-SPAM compliant in terms of including both a mailing address and unsubscribe method, versus 52% last year. While non-promotional emails are not required under the law to be compliant with the CAN-SPAM Act, we believe that all emails should be compliant.

This year, for the first time, we also tracked the passage of time between subscriptions and the delivery of welcome emails. The good news is that 61% of retailers deliver their welcome emails within 10 minutes of sign up, with most of those delivering within 3 minutes. The bad news is that 19% take more than 24 hours to deliver their welcome emails, with nearly a third of those taking more than a week to deliver. In the world of digital communications, that’s an eternity to wait for a welcome email.

Other key findings from the study include:
• 32% of welcome emails include a discount, reward or incentive, down from 34% last year. That’s in line with the results of our subscription study, which saw a move away from incentives during sign-up.
• 62% of welcome emails asked the subscriber to whitelist them by adding an email address to their address book, up from 49% last year.
• 79% of retailers sent out HTML welcome emails, up from 69% last. The remainder sent text-only welcome emails. That said, most of the HTML welcome emails were HTML “lite,” making extensive use of HTML text.
• 53% of welcome emails included links to the retailer’s privacy policy, up from 45% last year.
• 75% of the welcome emails include the retailer’s brand name in their subject lines, on par with last year. Including branding here helps the subscriber recognize the email as one that they requested.

Get the Full Report
Visit the Whitepaper Room to download the full 30-page report, which is free for eec platinum members, available at a discount to eec gold and silver members, and available for $179 for non-members. Not a member? Learn more about becoming a member of the Email Experience Council.

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Weekly Whitepaper Room Refresh

Written on August 3rd, 2007 | Posted by admin in Can-spam, Onboarding emails, Spam, Weekly whitepaper room refresh

Every week the EEC adds new content to its Whitepaper Room. Here are the latest additions:

DMA: FTC Spam Summit Best Practices Presentation Slides
See Jerry Cerasale’s presentation on best practices delivered at the July 2007 FTC Spam Summit.

Chad White: Reportlet - Retailers Missing Opportunities by Shunning Onboarding Emails
Only a handful of major online retailers ease new subscribers into their email programs.

*Have a whitepaper you’d like to contribute? Email it to

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FTC Summit Missing Mark

Written on July 23rd, 2007 | Posted by admin in Can-spam, Spam

Ken Magill was right: The recent FTC Spam Summit was a real snoozer. Maybe it was the oppressively humid weather in D.C. this time of year that’s conducive to snoozing. More likely, it was due to our own misplaced expectations that such an event could ever be more than a big “show ’n tell.” Never mind that we’d heard all the speeches and solutions before and that not much had changed since the last Summit. This simply wasn’t the forum for examining the truly systemic issues or questioning the wisdom of the industry’s strategies and tactics. Debating those things in front of a regulatory body simply wasn’t on the agenda, and it was probably unrealistic to ever think it could be.

Nonetheless, those are precisely the things we should be debating in our industry. Trevor Hughes of the ESPC set the stage by arguing that there are really two classes of spam—spam that is malicious and spam that is annoying. His point was that today’s real problem is with the malicious spam that comes from the bad players, not legitimate companies. The inescapable conclusion was that the answer isn’t further legislation since the bad players operate outside of the law anyway. While it’s a good message for the FTC to hear as it considers further rule making under CAN-SPAM, it didn’t go far enough.

After acknowledging those two classes of spam, we should be talking about how to deal with them. No one disputes that both are undesirable, but applying the same tactics used to combat the malicious spam to that which is annoying is what produces “false positives” and endangers the reliability of the medium for legitimate commerce. In my mind, reconciling email security with legitimate commerce—balancing the scales—is the critical challenge facing our industry today. Admittedly, my attempt to address this challenge at the FTC Summit fell flat. (Right message, wrong forum.) Yet, I’m convinced this is the real debate we need to have. And we do need some new thinking about the roles that different stakeholders (consumers, ISPs and senders) can and should play.

If the FTC Summit isn’t the right forum, what is? We need a new blueprint for email. Where can we come together to debate the systemic issues and arrive at more coherent, comprehensive solutions that satisfy both our security and commercial concerns? We can’t continually parade into Washington, D.C., with nothing new to tell and nothing new to show. At some point, the FTC’s patience will wear thin…as it should. If industry wants to retain the latitude of self-regulation, industry must have more to show for its efforts. We’ll invite government intervention if we don’t.

—Dave Lewis

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Good Email Hygiene Doesn't End with CAN-SPAM

Written on June 7th, 2007 | Posted by admin in Can-spam, Permission practices

Is it just my imagination or is there a resurgence in CAN-SPAM interest in the news recently? Between the INBOX session on “Getting Email into the Inbox,” where we chatted on a couple-few issues related to what being CAN-SPAM compliant really means, to press coverage by selecting a CAN-SPAM-compliance monitoring solution for a “Best for… Making sure your outbound mail works” award, it seems there’s a surprising increase in interest in this topic. I checked with our own support team and lo and behold…higher volumes of questions last week about what it means to be CAN-SPAM compliant. It’s gotten so bad our email policy director has taken it upon himself to write a white paper enumerating what it means and, more importantly, what it does not mean to be CAN-SPAM compliant.

Frankly, I find this all rather odd.

Odd because CAN-SPAM compliance should be called what it truly is…ineffectual legislation from the one part of our industrial economy that is least likely to produce efficient policies—the government. I hear folks intimate this all the time. CAN-SPAM compliance is the most negligible form of email marketing compliance that you can actually do. If you are building a program and infrastructure to effect CAN-SPAM compliance as your only goal, then by all indications you will essentially appear to be a spammer. You may ask yourself why that is, and while there are many reasons, it basically comes down to permission. CAN-SPAM doesn’t require permission from the end user while the industry at large does.

Congratulations! You won’t be able to get your email delivered but your CAN-SPAM compliance will be beyond reproach.

There are a great number of checklist items that EEC members in aggregate will advise people to do for effective email marketing. Certainly CAN-SPAM compliance is on that list. But always remember that this is very basic stuff that you simply have to do. In the way of a simile, it’s like going out on a first date. You know you need to perform a set of personal hygiene acts. CAN-SPAM compliance is akin to just brushing your teeth and throwing cold water on your face. If you hope to get a second date or even a phone call, you need to put your best foot forward. The latest threads and a bit of cologne might be in order. Aiming for the bare minimum shouldn’t be your goal and that is what CAN-SPAM is—the bare minimum.

—J.F. Sullivan

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