Hi Reader!

About a week ago, Rebecca asked if I’d break down the Washington Supreme Court case on Old Navy and their misleading email sale promo subject lines.

This case opened a bigger can of worms than it closed. But it comes into play when crafting email subject lines, especially holiday promotions.

As a reminder, the CAN-SPAM Act regulates email marketing in the U.S., but several states have stricter laws that must be followed if you are emailing people who reside in those states.

(Because remember, email marketing and privacy laws aren’t based on where you are, but where those reading your emails or visiting your website are.)

Here’s the rundown on what these laws say about email subject lines:

• The CAN-SPAM Act requires your subject line to reflect the actual content of the email and not be misleading. (Applies to any U.S. email subscriber.)
• ​CEMA requires that your subject line not contain any false or misleading information. (Applies to any Washington email subscriber.)

The Old Navy lawsuit centered on whether CEMA prohibited subject lines announcing:

• a 50% off promotion was ending that day, but it didn’t
• time-limited promotions (e.g., 1-day promotion) that extended beyond the time listed

And the court said yes: that these subject lines were false or misleading and therefore subject to financial penalties under CEMA.

The court spelled out an important carve-out around statements like “Best Deals of the Year”. The court said these wouldn’t be subject to financial penalties, because they were subjective and “mere puffery”.

As I mentioned, this case opened another can of worms. And that’s if it’s illegal under the CEMA to use a subject line offering a 50% off sale, but when subscribers click through, they learn that only some products/certain items are on sale. (So it’s true, but it might be misleading because the whole shop is not a 50% off sale.)

Why should you worry about this?

First, because both CEMA and the CAN-SPAM Act have penalties that kick in for each email you send that violates these laws. CEMA is $500 per email sent to each Washington resident. This means a three-email campaign sent to 100 Washington residents equals a $150,000 CEMA fine. Add to that the $53,088 per email fine under the CAN-SPAM Act. So these penalties can add up quickly and eat away at any profit you made from the email.

Second, you should care because misleading subject lines erode customer trust and future sales.

How you can apply this case to your business:

• Keep accuracy, not open rate, in mind when drafting subject lines.
• Don’t use fake urgency. If a promotion isn’t time-limited, don’t say it is in the subject line.
• Don’t mislead. If a promotion is ongoing, don’t claim it’s “new”, “ending”, or “extended”.
• If a discount sale is only available for some products/categories, then say that in your subject line.
• You can use subjective phrases like “Amazing Deals,” but if it’s not subjective, then it must be accurate.

Of course, this is only one of the CAN-SPAM Act requirements; head here to read my breakdown of all the CAN-SPAM Act requirements.

👉 Your action item: Create a reminder in your email marketing process to check your subject lines for any statement that might be misleading. So you can update it before you hit send.

Did you complete this action item? Come share your thoughts about email marketing on LinkedIn or Facebook.

That's all for this week Reader! When you signed up, my promise was to add ease to the legalese of running your creative business. I'd love to know your thoughts or challenges with this week's action item. Reply to this email and let me know.

And a big thank you to the six of you who responded last week! You rock! 🙌

Chat soon,

P.S. I’m starting my first pair of colorwork socks and created the pattern using the motifs in Jamie Lomax’s book The Doodle Knit Directory. It was such a fun puzzle to put together, requiring both the right and left sides of my brain. We are in for a cold and rainy weekend in Wyoming, so they should start coming together this weekend. Watch my Instagram for an in-progress story soon!

6 20-minute tasks you can do in Q4 to end the year strong

Wrapping up our quarterly legal task series with the 6 tasks you should do in Q4 for your creative business.

• update your client or customer contract
• update your contract review system
• talk to a broker to decide if your business needs any changes in your insurance policies
• get quotes for your insurance policies
• pay your taxes
• if you are an LLC or corporation, document all major business decisions and hold any required meetings

Learn why and how you should do each of these tasks in Q4 to end the year strong, in this week's blog post.

​

Other things on my radar...

• The courts might have squashed the FTC’s Click to Cancel Rule, but it doesn’t mean that the FTC isn’t figuring out other ways to enforce unfair subscription cancellation practices, as this week’s $2.5 billion Amazon settlement shows.
• E-commerce business that runs an SMS campaign? This post breaks down the recent Texas SMS law, as well as providing some key takeaways about whether you’ll need to register, pay the $200 filing fee, and post the $10,000 bond to continue sending SMS messages to Texas residents.
• The USPTO received Congressional approval to use its Operating Reserves to stay open, despite the current government shutdown. Allowing applications, renewals, and cancellations to continue being processed. It’s expected these reserves will last 2-3 months.

❤️ Easy to understand legal resources should be available to every creative, regardless of their financial situation. If one of my resources has helped you and you would like to say “thank you”, you can make a contribution here. ❤️