Topic: Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM Act)
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Our bank wants to offer existing customers a minimal referral bonus if they bring someone in who opens a new checking account that remains open for a specified minimum time period. Is there any guidance on advertising such a bonus? Also, are there any associated IRS reporting requirements?
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We are not aware of any guidance specific to advertising a checking account referral program for existing customers. We note that Regulation P’s privacy requirements generally prohibit your bank from disclosing “the fact that an individual is or has been one of your customers or has obtained a financial product or service from you.” To…
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We would like our mortgage loan originators to send out an email reminders to mortgage loan customers with the details of their upcoming closing, such as the time and place. The subject line of the email would be “Your Closing.” The email would contain one line near the end asking the borrower to refer anyone they know looking for a mortgage to our bank. Does this email need to comply with the CAN-SPAM rules?
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No, we do not believe the email needs to comply with the CAN-SPAM rules, as the email’s “primary purpose” does not seem to be “commercial.” The CAN-SPAM Act applies only to commercial emails, defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or…
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Our marketing department would like our loan officers to email new residential mortgage loan customers to congratulate them on their loans, check in, and encourage them to refer anyone they know in need of a loan to our bank. Do these emails need to comply with the CAN-SPAM rules?
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Whether these emails must comply with the CAN-SPAM rules hinges on whether the emails’ “primary purpose” is deemed to be “commercial” — a fact specific inquiry that depends on the subject line and content of the email. If you are unsure how these emails would be characterized, the conservative approach would be to ensure that…
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A form entitled “CONSENT TO CONTACT YOU BY TELEPHONE, TEXT AND EMAIL” has started to appear in our test loan production environment. The form authorizes a lender to contact its loan customer about their loan account by telephone, text and email. Is this form required under Illinois law?
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No, we do not believe this form is required by Illinois law, and we are not aware of any Illinois law requiring a lender to obtain written consent to contact their customers about their loan accounts by telephone, text or email. However, federal law may require that you obtain prior written consent to contact your…
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We are sending an email advertisement to existing auto loan customers for a credit card that we offer through a third party. Those who apply for the credit card will receive an Amazon gift card. The email also contains a link to the additional disclosures required under Regulation Z. Is the link sufficient, or should we include the disclosures in the body of the email? Also, should we specify that the offer is only for the email recipient or for existing auto loan customers, so that recipients don’t share the offer email? Are there any other issues with such an email advertisement?
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Yes, Regulation Z and its Official Interpretations permit electronic advertisements to provide the additional required disclosures through a link, provided any trigger terms in the email are “accompanied by a link that directly takes the consumer to the additional information.” We also recommend reviewing the email to ensure that it complies with the CAN-SPAM Act,…
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If a bank employee sends an email to an acquaintance offering a bank deposit product, with a statement of the product’s annual percentage yield (APY), does that trigger our Truth in Savings Act (TISA) disclosures or CAN-SPAM requirements?
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Yes, an email that mentions a deposit product’s APY will trigger the TISA’s additional advertising disclosures. Regulation DD’s advertising requirements expressly apply to one-on-one communications such as telephone solicitations, and we would read it as also applying to emails. While Regulation DD does exempt “in-person discussions with consumers about the terms for a specific account,”…
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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?
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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…
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Under the CAN-SPAM Act, if we send a commercial email solicitation from our loan department and a customer opts out from future emails, can we notify the customer that their opt out applies only to the loan department and continue to send messages from other departments?
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Yes, you may give customers the opportunity to opt out of messages from just one department, provided you also include the option to stop all commercial messages from your bank. The Federal Trade Commission, the agency charged with issuing regulations for implementing the CAN–SPAM Act, permits commercial email senders to create a menu to allow…
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If our lenders are sending out email newsletters (some with generic information and some encouraging the email recipient to refinance a loan), would the CAN-SPAM Act apply, and would the emails be considered advertisements under Regulation Z?
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Commercial Emails under the CAN-SPAM Act As explained by the FDIC’s Examination Manual (Chapter VIII, Section 4.1), the CAN-SPAM Act applies only to commercial emails, defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” 15 USC 7702(2). The FTC’s CAN-SPAM regulations…