How to Avoid a Legal Land Mine in Email Remarketing

Recovering abandoned shopping carts and web forms is a lucrative business. On average 70 percent of shopping carts and 56 percent of web forms are abandoned before completion. In an effort to win these customers back, retailers employ email remarketing campaigns that should recover on average between 10 and 30 percent of abandoners. That translates directly into significant incremental revenues.

When it comes to email remarketing, one question that I get asked fairly regularly is about what is needed to ensure compliance with CAN-SPAM in the U.S. and the European Privacy Directive in Europe when setting up a remarketing campaign. The situation is really straightforward in the U.S. (it comes down to little more than checking your privacy policy), but it is slightly more complicated in Europe.

As a result, we engaged Ruth Boardman, a partner at Bird and Bird LLP, and one of the world’s leading electronic data privacy experts. Ruth and I co-authored a white paper on email remarketing compliance that covers this subject in more depth, and additionally, we recorded a webcast titled Email Remarketing and Compliance (in the U.S. and European Union).

For this blog, we’ll focus exclusively on the U.S., and I’ll write about compliance in the European Union separately.

CAN-SPAM Compliance Remarketing Checklist

The only thing that you need to do to send remarketing emails in the U.S. and comply with CAN-SPAM is to check your website privacy policy.
Most website privacy policies already contain the required language which covers using the data that has been captured for remarketing. But you should check your privacy policy to ensure that yours does as well.

Typically, privacy policies contain sections on:

• what information will be collected, and
• what it will be used for.

You should check each section as follows:

What information will be collected

• Check that your privacy policy states that you will collect email addresses. This will look something like this clause:
  What Information Do We Collect?
• When you order from us, we collect your name, billing address, shipping address, email address, phone number(s) and credit card number (with expiration date) or gift card number

What the collected information will be used for.
Check that you have a clause similar to this:

• How Do We Use Your Information?
• We may use your information in a number of ways, including the following:  For marketing and promotional purposes. For example, we send out email and direct mail to our online and store customers about products or events that we think may be of interest to them. We also may send you offers for discounts or free services (e.g., free gift wrap or shipping) on our site or in our stores.

Your marketing and promotional purposes clause may cover remarketing, but it is best practice to add a clause specific to remarketing. You can find an example in the email remarketing compliance white paper here.  That’s it. It’s all that is required to comply with CAN-SPAM. Simple, huh?

Next week, we’ll look at remarketing in the European Union and see how things are different in Europe.