IBA Compliance Connection

Your go to source for compliance!

We are planning to distribute new, chip-enabled debit cards to all of our customers. We would like to send a mass email to customers who have provided their email addresses notifying them that they need to verify their mailing addresses to avoid delay. Would sending this email violate any regulations?

—

by

admin

We do not believe that an email requesting verification of customers' mailing addresses would violate any laws or regulations, provided that the email does not require customers to verify their mailing addresses as a precondition for receiving a new debit card.

The E-SIGN Act requires you to make certain disclosures along with obtaining the recipient's consent before sending certain documents electronically, but those requirements apply only to documents that are required by law to be in writing. Otherwise, the general rule is that documents sent electronically are permitted without these disclosures and consent. In this case, if the email simply requests that customers update their mailing addresses to avoid delay in receiving their new debit cards, we do not believe that the E-SIGN disclosure and consent requirements would apply.

We do recommend reviewing the email to ensure that it is not covered by the CAN-SPAM Act, which requires commercial emails to include “clear and conspicuous identification that the message is an advertisement or solicitation,” among other restrictions and requirements. However, based on the email described in your question, the CAN-SPAM Act would not apply here.

For resources related to our guidance, please see:

  • E-SIGN Act, 15 USC 7001(c) (“ . . . if a statute, regulation, or other rule of law requires that information . . . be provided or made available to a consumer in writing, the use of an electronic record to provide or make available (whichever is required) such information satisfies the requirement that such information be in writing if [among several other requirements] the consumer has affirmatively consented to such use and has not withdrawn such consent; . . .”)

  • E-SIGN Act, 15 USC 7001(a)(1) (“In general. Notwithstanding any statute, regulation, or other rule of law (other than this subchapter and subchapter II), with respect to any transaction in or affecting interstate or foreign commerce (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.”)

  • CAN-SPAM Act, 15 USC 7702(2) (“The term ‘commercial electronic mail message’ means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).)

  • CAN-SPAM Act, 15 USC 7702(17) (“The term ‘transactional or relationship message” means an electronic mail message the primary purpose of which is (i) to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender; . . .”)

  • FTC CAN-SPAM Act regulations, 16 CFR 316.3 (“ . . . the ‘primary purpose’ of an electronic mail message shall be deemed to be transactional or relationship if the electronic mail message consists exclusively of transactional or relationship content as set forth in paragraph (c) of this section.”)