Legal Considerations for Email Marketing

Small businesses have more ways than ever to reach their audience. Social media, websites and blogs, video campaigns, webinars, and podcasts are just a few of the marketing strategies that you may leverage to drive sales. And while it is good to experiment with new ways of communicating your message, you should not overlook tried-and-true strategies like email marketing.

Email marketing is one of the more affordable marketing channels and has an impressive return on investment (ROI). Before you implement an email marketing strategy, however, your business should be aware of privacy and anti-spam laws that apply to direct-to-inbox communications. A well-thought-out email campaign can keep you top of mind with your audience, but a campaign that does not respect privacy rights can do more harm than good.

Email Marketing Stats to Know

The key to a successful marketing campaign is visibility. Your message is not going to get through if it is never received in the first place. Email has been around for decades and remains a part of people’s daily lives. According to a 2019 email usage study by Adobe, Americans spend an average of five hours per day checking emails.1

Despite the enduring popularity of email, not all marketers use it to their advantage. A HubSpot survey found that email marketing is used by about 50 percent of marketers, with more than 20 percent saying they plan to leverage email for the first time in 2022.2

Email marketing ROI is thirty-six dollars for every one dollar spent. That is a better ROI than organic searching and the third highest ROI of any marketing channel, trailing only paid and organic social media content. Over the last twelve months, more than three-quarters of marketers have seen an increase in email engagement, and 37 percent of brands plan on raising their email budget this year.3

Email Marketing and Privacy Laws

Effective email marketing is not as simple as sending out electronic missives on a regular basis. Strategies like market segmentation, strategic email copy that is targeted to your audience, and email A/B testing can help to increase open rates, click-through rates, and ROI.

But there is more to email marketing than understanding your audience. You must also understand the legal requirements for email marketing. Marketing emails sent to US recipients are subject to the CAN-SPAM Act, a law implemented in 2003 and updated in 2008. Violations of this law can subject businesses to fines of up to $46,517 per each separate email in violation, making noncompliance potentially costly.

To ensure that your marketing emails comply with the law, follow these CAN-SPAM requirements4:

No false or misleading headers. Your domain name and email address must accurately identify your name (or the name of your business) in the “From,” “To,” and “Reply-To” fields.
No deceptive subject lines. Honesty is the best policy in email marketing. The subject line of your email needs to reflect what is in the message. For example, if you are advertising a new product, do not make the subject line about a free gift card.
Identify your email as an advertisement. You have considerable flexibility in how you identify your message as an ad but ensure that the disclosure is clear and conspicuous.
Identify your location. Include a valid physical postal address for yourself or your business in all marketing emails.
Provide a way to opt out. Explain somewhere in your message how recipients can opt out of future emails. The Federal Trade Commission (FTC) says that your opt-out notice must be “easy for an ordinary person to recognize, read, and understand.”
Promptly honor opt out-requests. If you receive an opt-out request from an email recipient, you have ten days to comply. Once you receive a request, you are prohibited from selling or transferring the recipient’s email address to another party, including in mailing list form. To make compliance easier, most email marketing platforms automatically remove individuals who opt out from your lists.
Stay on top of marketing firm activities. Your legal responsibilities under the CAN-SPAM Act do not disappear if you contract with a marketing company to do your email marketing and they break the law.

Email Marketing Compliance and Your Privacy Policy

Other countries have requirements similar to those in the CAN-SPAM Act. For instance, Canada’s Anti-Spam Legislation (CASL) requires marketers to obtain consent (express or implied) prior to sending commercial emails. Similar consent requirements are found in the United Kingdom’s Privacy and Electronic Communications Regulations (PECR). Outside of the UK, European Union member states have adopted the General Data Protection Regulation (GDPR), which has rules that apply to email and email marketing.5

A growing number of countries and US states are adopting GDPR-like data protection rules that have marketing implications. California, Colorado, Connecticut, Utah, and Virginia have enacted comprehensive consumer data protection laws that may affect your email marketing and other marketing activities. For example, the California Consumer Protection Act (CCPA) gives consumers the right to delete certain personal information—including email addresses—that companies collect. If you are covered by the CCPA, you must comply with deletion requests, disclose to consumers their right to have personal information deleted, and notify any third parties that collect data on your behalf of the deletion request. Other state data laws have similar provisions.

Considering these developments, your company should craft a privacy policy that explains what you do with subscribers’ personal data, and a link to the policy should be included in emails and on web pages. Even in locations that do not require it, a privacy policy with a section on email marketing is considered a best practice that can earn customer trust. With the national American Data Privacy and Protection Act inching closer to reality, and similar laws being passed globally, having a strong privacy policy in place now can jumpstart your data compliance strategy.

With the data privacy movement gaining momentum in the United States and worldwide, protecting consumers from spam emails and other privacy violations is crucial. In addition to helping you avoid penalties, a compliance strategy that prioritizes customer consent and preference can provide a competitive advantage. Our attorneys can ensure that your business complies with consumer privacy laws everywhere you do business. For help with your digital compliance, please contact us.

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1 Michael Guta, Hey Marketers, Americans Still Spend 5 Hours a Day on Email, Small Business Trends (Apr. 16, 2021), https://smallbiztrends.com/2019/09/email-usage-statistics.html.

2 Maxwell Iskiev, The HubSpot Blog’s 2022 Content and Media Strategy Report [Data], HubSpot, https://blog.hubspot.com/marketing/content-and-media-strategy-report (last visited Sept. 16, 2022).

3 Katrina Kirsch, The Ultimate List of Email Marketing Stats for 2022, HubSpot, https://blog.hubspot.com/marketing/email-marketing-stats (last visited Sept. 16, 2022).

4 CAN-SPAM Act: A Compliance Guide for Business, Fed. Trade Comm’n, https://www.ftc.gov/business-guidance/resources/can-spam-act-compliance-guide-business (last visited Sept. 16, 2022).

5 Ben Wolford, How Does the GDPR Affect Email?, GDPR.eu, https://gdpr.eu/email-encryption/ (last visited Sept. 19, 2022).

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Pamela Denise Mack

Attorney Pamela Denise Mack is the founding and managing member of the firm The Mack Law Group. She founded the firm in 2019, and concentrates her practice in the areas of corporate/commercial transactions and legacy planning, by providing counseling and advice to businesses, business owners, and their families.

Contact us

Bloomfield Hills, Michigan

Phone: (248) 229-0185

info@macklawgrp.com

CTA Imposes New Small Business Reporting Requirements for 2024 Small business owners will have one more item on their compliance to-do list when the Corporate Transparency Act (CTA) takes effect next

02 Apr, 2024

Small business owners will have one more item on their compliance to-do list when the Corporate Transparency Act (CTA) takes effect next year. The CTA, enacted as part of the Anti-Money Laundering Act of 2020 (AMLA), places new reporting requirements on many business entities in an effort to expose illegal activities, including the use of shell companies to launder money or conceal illicit funds. Around 30 million small businesses will be impacted by the law, which will establish a federal database of information, furnished by “reporting companies,” that will be accessible to certain authorities and organizations. A final rule has been issued stating how the new law will be implemented to help businesses understand whether the law applies to them, how to comply, and which agencies will have access to the information they must report. CTA violations carry civil and criminal penalties, including imprisonment. Why was the CTA passed? The CTA was passed as part of the National Defense Authorization Act for Fiscal Year 2021. It directs the US Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) to gather information from private companies about their owners and controlling persons. Acting Director Himamauli Das said, “FinCEN is taking aggressive aim at those who would exploit anonymous shell corporations, front companies, and other loopholes to launder the proceeds of crimes, such as corruption, drug and arms trafficking, or terrorist financing.” To counter the risks allegedly posed by anonymous shell companies, the CTA mandates the creation of a national registry that contains certain information about business entities that are formed by filing a document with a state’s secretary of state or similar office. What does the CTA require? Effective January 1, 2024, the CTA requires that certain businesses disclose to FinCEN information about the company, its beneficial owners, and in some cases, the company applicant. Reporting companies—defined as any company with twenty or fewer employees that is formed by filing paperwork with the Secretary of State or equivalent official—that are created or registered prior to January 1, 2024, have until January 1, 2025, to file an initial report; reporting companies created or registered after January 1, 2024, will have thirty days after creation or registration to file a report. Small business organizations such as the National Small Business Association (NSBA) and the National Federation of Independent Businesses (NFIB) oppose the CTA, calling it cumbersome, intrusive, overly punitive, and unconstitutional. NSBA states that small businesses are unfairly impacted because they usually do not have compliance teams or staff attorneys. Eighty percent of the small businesses surveyed by NFIB are against the new reporting requirements, which NFIB claims are unclear. NFIB notes that each state has different standards and practices for business entity formation, potentially leading to uncertainty about whether a business must report to FinCEN. For example, some states require sole proprietorships and general partnerships to register with state agencies, while other states do not. Does the CTA require my business to report? The CTA applies to companies that are created by filing a document with a state authority. Typically, this includes corporations and limited liability companies. Depending on the state, it could also include limited partnerships, professional associations, cooperatives, real estate investment trusts, and trusts. In addition, the CTA applies to non-US companies that are registered to operate in the United States. NFIB estimates that, based on these rules, 30 million small businesses will have to report to FinCEN. However, the CTA exempts around two dozen categories of companies, including companies that: are publicly-traded; have more than twenty full-time US employees; filed a previous year’s tax return showing more than $5 million in gross receipts or sales; have an operating presence at a physical US office location; operate in a regulated industry, such as banking, utilities, or insurance, that already imposes similar reporting requirements; or are subsidiaries of exempt organizations. The exemptions, which generally include larger companies that are already subject to regulation, underline the primary purpose of the CTA: to combat money laundering and other illicit activities conducted via small, private, and anonymous shell companies. What information must be provided in the reports? The CTA requires three categories of information to be reported: company, owners, and applicant. Domestic reporting companies created before January 1, 2024 must provide information about the company and its beneficial owners . Beneficial owner is defined in the CTA as an individual who exercises “substantial control” over the reporting company or has an ownership interest of at least 25 percent. Company senior officers, directors, and others who make significant decisions on behalf of the company may meet this statutory definition of “substantial control,” although the broad definition may cause confusion in some instances. Domestic reporting companies created on or after January 1, 2024, must provide information about the company, its beneficial owners, and its company applicants . A company applicant generally is the individual who files the formation document with state authorities for the reporting company. Technically, the information to be filed with FinCEN is called a Beneficial Ownership Information (BOI) Report. The following is what is required in the report for a company, an owner, and an applicant: The reporting company must provide its name and any alternative (DBA) names, the address of its principal place of business, the state of formation, and its taxpayer identification number or FinCEN identifier. Each beneficial owner of a reporting company must furnish their full legal name, date of birth, residential address, and an identification number from a driver’s license, passport, or other state-issued identification (ID), along with a copy of the ID document. A company applicant is required to submit the same information as a beneficial owner. Who has access to FinCEN BOI reports? The CTA authorizes FinCEN to disclose BOI information to five categories of recipients: US federal, state, local, and tribal government agencies Foreign law enforcement agencies, judges, prosecutors, and other authorities Financial institutions Federal regulators US Department of the Treasury FinCEN may only disclose BOI information “under specific circumstances”: there are more stringent requirements for agencies other than those engaged in national security, intelligence, and law enforcement activities. There are also restrictions on how the information may be used and how it must be secured. Some small business owners have expressed concerns about the privacy implications of the CTA. The NSBA has filed a lawsuit challenging the CTA’s constitutionality, in part on privacy grounds over sharing “sensitive information” with the government. Are there penalties for noncompliance with the CTA? Penalties for noncompliance may be steep. Willingly providing false information (including false identifying documents) to FinCEN, or failing to report complete BOI information, can result in: Fines of $500 per day, up to $10,000 Imprisonment for up to two years Civil and criminal liability may be avoided if an individual who submitted an original, erroneous report did not knowingly submit inaccurate information and submits an updated report correcting the inaccurate information within ninety days . Get help with CTA reporting requirements. Understanding how the CTA applies to you, how it will affect your business, and what you must do to comply introduces new burdens that you may have scarce resources to address. Terms like “beneficial owner” and “substantial control” may seem vague and confusing, further complicating compliance efforts. But compliance is critical for business owners who want to avoid possible sanctions. We can help you determine whether the CTA applies to your business and the steps needed to meet its reporting requirements. With the law’s effective date just months away, we encourage you to reach out now to start working on a CTA compliance strategy. Sincerely, The Nosy Lawyer™ The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation. Call us if you have questions about your specific situation. Call us if we can be of assistance to you. Schedule an appointment with an attorney: www.calendly.com/macklawgrp.com - initial consultation link. The Nosy Lawyer™ is a publication of the Mack Law Group, PLC a Bloomfield

How Effective Estate Planning Can Avoid Detrimental Disputes In The Hospital

12 Mar, 2024

When clients seek estate planning advice, they often begin with a request to draft a will or a trust. After a few “nosy lawyer” questions, I discover what they are really seeking is assurance that their affairs are handled in an orderly fashion, so that their family is taking care of when “if” and “when” something happens to them. The “if” is if they are disabled or incapacitated and unable to handle their own affairs, and the “when” is when they die. Estate planning has two essential parts – pre-death death and post death planning. Of course, there are several ways to design plans around these two concepts, but if done correctly, an estate plan should provide an orderly way to address the “if” and “when”. Pre-Death Planning Let’s talk about pre-death planning and how it can avoid stressful situations in the ICU. According to a recent study approximately 1 in 5 patients in the U.S. die in the ICU. The ICU is a place where decisions about care must often be made quickly and decisively. The ability to do so can hinge upon sorting out who can make those decisions, and under what legal authority. This process can come with great deliberation and debate among family members with differing views on a patient’s care, leaving medical professionals stressed in the uncomfortable middle. There is a better way. We recommend our clients prepare with pre-death planning. A Medical Power of Attorney (also called Patient Advocate Designation) importantly allows a patient who is otherwise unable to make medical decisions to designate someone to make those decisions on his/her behalf. Having a properly drafted and executed Medical Durable Power of Attorney can reduce family fights and enable medical professionals to move quickly to take critical medical action. This document is a part of our pre-death planning. It takes the guess work out of who oversees making medical decisions, allows the decisions to be made in accordance with the patient’s wishes, and allows the medical professionals to go about saving lives. Sincerely, The Nosy Lawyer™ The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation. Call us if you have questions about your specific situation. Call us if we can be of assistance to you. Schedule an appointment with an attorney: www.calendly.com/macklawgrp.com - initial consultation link. The Nosy Lawyer™ is a publication of the Mack Law Group, PLC a Bloomfield

The Sole Proprietorship: Pros and Cons

29 Feb, 2024

Transitioning from being an employee to being self-employed is a goal of many American workers, and a growing number of workers have realized their goal in the wake of pandemic-related economic disruptions. Individuals often cite taking control of their career as a top motivating factor for being self-employed. Self-employment frequently starts as a side hustle that blossoms into a full-time career. Without even knowing it, however, the self-employed may find themselves operating a sole proprietorship. Whether a sole proprietorship is the final destination on a self-employed individual’s entrepreneurial journey or a stop on the way to running a larger business, they should understand the pros and cons of this structure. The Shift to Self-Employment Having a full-time job was once seen as the main path to a successful career. But that perception has changed radically among younger workers, who have learned the hard way that employment does not offer the security it once did. The Great Recession saw roughly one in five employees lose their jobs. It pushed many of them into temporary work, often as contractors; disrupted traditional career paths; and contributed to an overall sense that the economic system is broken. While the economy stabilized in the years after the Great Recession, COVID-19 delivered another blow as millions of businesses laid off staff. The number of self-employed workers rose sharply following pandemic-related shutdowns and layoffs. However, unlike with the Great Recession, the newly self-employed after the pandemic were not just employees who had been laid off from their jobs. Forced to reconsider their work lives during the COVID-19 lockdowns, many workers joined the Great Resignation, willingly leaving their jobs to become self-employed. Self-employment remains above pre-pandemic levels and, if it continues increasing at its current rate, could surpass traditional employment in the coming years. Self-employed Americans comprise roughly 6 percent to 15 percent of the workforce, depending on the source. However, many more Americans want to be self-employed. A 2021 survey conducted by Freshbooks found that 40 percent of traditionally employed Americans were contemplating a shift to self-employment, with half saying it is their top life goal. Among those who are self-employed, 95 percent said they plan to stay that way for the foreseeable future, the study also found. It is not just low-skilled workers, such as rideshare and delivery drivers, that are swelling the self-employed ranks. According to an Upwork survey, highly educated and skilled workers make up a growing share of those providing freelance services. Self-Employment and Sole Proprietorship Workers who are not employed by a specific company may, by default, be operating a sole proprietorship. Unlike a corporation, limited liability company (LLC), or partnership, which require paperwork to be filed with the state and the payment of filing fees, a sole proprietorship typically requires no such formalities. In fact, a contractor, freelancer, or other self-employed individual is automatically considered a sole proprietor by the Internal Revenue Service (IRS) if they operate a business under their own name and are not registered as another business type. Sole proprietors may need to obtain industry-specific licenses and permits to lawfully operate. They can also file an application to conduct business under a fictitious name, called a doing business as (DBA) name. With a DBA, a sole proprietorship entity is not separate from the individual who runs it: legally, they are considered the same. While fictitious name certificates do not provide any significant legal protections, they can help business owners conduct business within a certain geographical space under a specified name. This should not be confused with trademark protections that provide certain levels of exclusivity when it comes to brand identifiers such as names and logos. Benefits of a Sole Proprietorship The simplicity of a sole proprietorship is one of its major advantages. Other than paying taxes, there are typically no required filings or registrations. Startup costs are low, and even tax preparation is relatively simple, since the sole proprietorship is not taxed separately from the business owner. The business’s profits and losses are reported on the business owner’s personal income tax return, which uses the owner’s Social Security number. In addition, sole proprietors can take advantage of tax deductions not available to employees, such as health insurance deductions and business expenses. With the simplicity of a sole proprietorship comes greater control over the business. Although some states permit a married couple to jointly own a sole proprietorship, there are no partners or shareholders to consider. The sole proprietor has the freedom to make every revenue decision—including how much to pay themselves and how much to reinvest in the business. They can guide the business in whatever direction they want. Drawbacks of a Sole Proprietorship Sole proprietors are fully responsible for their taxes, business decisions, and legal contingencies. While this creates freedom, it can also lead to exposure. As the sole owner, manager, and decision maker, the sole proprietor is solely liable for debts and financial losses that the business incurs. Because the business entity is not legally separate from the owner, personal assets are at risk if the business faces a lawsuit, bankruptcy, or financial trouble. The courts could seize a sole proprietor’s home, car, bank accounts, and other belongings to satisfy a liability of the business. Additional drawbacks of a sole proprietorship include the following: It is more difficult to raise capital due to the inability to sell stock, add new owners/members, or secure loans from banks, which tend to see sole proprietors as high risk. Difficulty raising capital can lead to problems growing the business. Sole proprietors generally must pay a self-employment tax of more than 15 percent on all business income. This tax doubles the Social Security and Medicare taxes that employees pay and comes on top of regular income tax. Not having business partners can be seen as a plus, but as the business matures and seeks fresh opportunities and investments, outside partners may be desirable. Sole Proprietors Don’t Have to Go It Alone. We Can Help. Making the jump to full-time self-employment could be the fulfillment of a lifelong goal, but working for yourself is not without challenges. Running a sole proprietorship may not be as simple as it appears on the surface. You might have to choose and register a DBA, register for licenses and permits, purchase a website domain, hire employees and obtain an employee identification number, open a business bank account, buy insurance to mitigate personal liability for business losses, and prove to the IRS that your business is not a “hobby” to reap the potential tax benefits of sole proprietorship. A sole proprietorship may initially be the right choice for consultants, freelancers, independent contractors, and some types of business owners such as franchisees who have minimal startup capital requirements and whose products or services involve a relatively low risk of liability. But at some point, you may decide that you have outgrown your sole proprietorship and want to form a business entity such as a corporation or an LLC. Further, if you plan to grow from the beginning, you may want to consider a different legal structure. During a meeting with our business attorneys, we can discuss the pros and cons of a sole proprietorship, whether it is right for you, how to get started as a small business owner, and ways we can help you meet your business goals. Call or contact us to get started. Sincerely, The Nosy Lawyer™ The information provided here is not legal advice and does not purport to be a substitute for advice of counsel on any specific matter. For legal advice, you should consult with an attorney concerning your specific situation. Call us if you have questions about your specific situation. Call us if we can be of assistance to you. Schedule an appointment with an attorney: www.calendly.com/macklawgrp.com - initial consultation link. The Nosy Lawyer™ is a publication of the Mack Law Group, PLC a Bloomfield