This does not constitute legal advice. I’m not a lawyer. Consult your counsel before taking any action.
We get this question all the time.
Most of the time it comes from our larger prospects, many of whom have either have worked through a deliverability crisis caused by buying a list, or have been at organizations that are fundamentally opposed to sending non-opt-in email marketing.
Here’s a detailed answer to that not-so-straightforward question.
From a legal standpoint, you can send non-opt-in email marketing in the USA
Contrary to popular belief, the US CAN-SPAM act says nothing about opt-in email marketing.
From a legal standpoint, as long as you have an opt-out link in your email, it’s 100% compliant with the CAN-SPAM act of 2003.
For a summary from the FTC on the CAN-SPAM act and what it actually does require from you, click here.
But what about CCPA?
The California Consumer Privacy Act (CCPA) is legislation that is much more strict than CAN-SPAM. It’s like GDPR (in Europe) in that you are required to make disclosures to your customers about the data you are collecting, the data you have about them, and make it easy for them to delete themselves from your database if they want to.
But CCPA has nothing to do with opt-in email marketing (which this post is about), so you’re totally fine there too.
You can send a marketing email without an opt-in and be fine from a compliance standpoint with CCPA.
It’s not a legal matter, it’s a choice made by your organization
The essence of this post is that it all comes down to your organization, and the posture you take toward sending opt-in email marketing.
Some organizations have decided that they’ll only send opt-in email.
Others don’t care if they got an explicit first-party opt-in or not, so long as engagement is good, and it doesn’t adversely impact their deliverability or their brand.
Some are very specific about the types of emails they will send to people who don’t opt-in explicitly. We have customers who will only send cart abandonment emails to people without an opt-in, but won’t send an unsolicited newsletter unless the person asked for it.
Why did I think I needed an opt-in to send marketing emails?
The (permission marketing) email marketing ecosystem was built around a first-party opt-in because that’s what needed to happen to make it function properly.
The main thing that the system couldn’t bear was companies renting or buying lists and blasting them to oblivion. That would simply ruin inboxes.
So inbox providers (Gmail/Hotmail), email service providers (Mailchimp/Salesforce Marketing Cloud), and regulators like Spamhaus all agreed to self-regulate at a higher standard than the CAN-SPAM law.
However, in recent years, SPAM filters have become very good, which happened when Gmail chose engagement as the key metric for evaluating whether or not the consumer actually wanted an email or not.
What does that mean?
Today, the most important thing in email marketing, by far, is engagement.
If you send emails that have high open rates, high click-throughs, low unsubscribes, and low complaints, you will see your deliverability (meaning your ability to hit the inbox) improve.
It doesn’t matter how you acquired the list, and whether the opt-ins are explicit and first-party or not.
A highly engaged, non-opt-in list is better for you in the long run than a low-engagement, opt-in list.
So it’s up to you.
Sending non-opt in email marketing that is highly engaged is a legal practice in the United States (not Europe or Canada) that won’t hurt your deliverability.
You need to decide where your organization falls on the spectrum.
Are you against it entirely, totally okay with it, or are you willing to do it in some cases, but not others?
No matter where you fall on that spectrum, GetEmails has Email-Based Retargeting and identification tools that can help you.