CAN-SPAM: Email marketing compliance for real estate agents

email deliverability Sep 09, 2018

Can you think of something real estate marketing has in common with pornography?

Oh, I can!

CAN-SPAM is an acronym for Controlling the Assault of Non-Solicited Pornography And Marketing. And in January 2004, the CAN-SPAM Act became law.

See? You’ve been living on the edge, and you didn’t even know it.

What is CAN-SPAM?

The CAN-SPAM Act set standards for commercial email and messages. It was created to give your email recipients the right to ask you to stop emailing them.

CAN-SPAM penalties

According to the Federal Trade Commission: “Each separate email in violation of the CAN-SPAM Act is subject to penalties of up to $41,484.”

Harsh. And exactly why CAN-SPAM compliance is your new BFF.


Identify the message as an ad.

The CAN-SPAM Act doesn’t require you to use specific wording or imagery or include the word “ad” in your subject line. You simply have to identify your message as an ad in a way that is “clear and conspicuous” to your subscribers.

Uh, okay.

The lack of clear direction is supposed to give you flexibility in how you execute the requirement. But if you’re like me, it stresses you out.

Don’t want to sweat it? Get express permission to email everyone on your list. If members of your list have consented or opted-in to receiving emails from you then you don’t have to identify your emails as advertisements. So says the FTC.

But what about the lists you rent from third parties? Or the email addresses shared with you by a vendor, trade association, or colleague? Or the email addresses in your database you added to your list? If you did not get express permission to market to these individuals, then you don’t have it. Period. And this is where things get more complicated—and stressful.

It’s not illegal to add people to your list without permission, but doing so increases your risk and makes compliance more difficult. Here’s why. If you don’t have express permission to market to your entire list, then you have to determine the primary purpose of your email. Is the content commercial, transactional/relational, or other? Then you must comply with specific requirements for that content type and face severe penalties if you don’t.

You can read all about content types and requirements on the FTC’s site (See the Q&A in the “Need more information?” section).

But honestly, getting permission is easier—and it delivers better results.

Share your physical address with email recipients.

You must share a legitimate physical address with your subscribers. You can use a P.O. Box address if you prefer not to use your home or office address.

Tell recipients how to opt out of receiving future email from you.

Make opting out of your list as easy as possible. Don’t try to hide your unsubscribe link. It may result in the subscriber marking your email as spam—and you do not want that. Avoid at all cost!

Here’s the upside of unsubscribes. When it comes to your email list, size isn’t everything. A small, engaged list is better than a large, unengaged list. So don’t be discouraged or take it personally when someone opts out of receiving your emails. They’re doing you a favor.

Honor opt-out requests promptly.

Opt-out requests must be honored within 10 days.

Monitor what others are doing on your behalf.

You’re not off the hook if your email marketing is being done for you by someone else. It’s your responsibility to make sure your business is being handled correctly.

CAN-SPAM don’ts

Don’t use false or misleading header information.

Your “From,” “To,” “Reply-To” and routing information—including the originating domain name and email address—must be accurate and identify the person or business who initiated the message.

Whut? Use your name, email address, and information. Don’t be shady and use someone else’s information and trick your subscribers into opening your email.

Don’t use deceptive subject lines.

We’ve all been victims of the old bait and switch. The subject line promises one thing but the email content delivers something else. Don’t do that! Instead, write a subject line that creates a clear expectation of what’s in your email, and then deliver it in your email copy.


I teach continuing education classes with Chicago Title at real estate offices in Portland, and I maintain a list of questions I’m frequently asked by agents. Don’t see your question here? Send me an email.

Q. Can I add email addresses to my list if I don’t have permission?

A. Yes, CAN-SPAM doesn’t require consent. However, this isn’t a best practice.

Q. Is there a way to remove the requirement of clearly and conspicuously marking commercial emails as an advertisement or solicitation?

A. Yes, get permission to add recipients to your email list.

Q. How soon do I need to honor opt-out requests?

A. Within 10 days.



Learn how email marketing can lessen your anxiety, increase your confidence, and make your business sustainable no matter what’s happening with the real estate market.