Update on Cease and Desist Zones and “Do Not Email” Rules

January 4, 2018 | By Charles Botensten

Q: I wanted to locate the New York State cease-and-desist lists that you refer to in your Question of the Week regarding Cold Calls.  I am unable to do so.  Why?

A: The cease-and-desist zones were covered by a New York State law that had a built-in expiration date, and the cease-and-desist lists have expired (two of the three lists expired in August 2014). However, there are proposed bills pending in the New York State legislature that could amend and extend the cease-and-desist rules, thus reactivating the cease-and-desist zones.  We will monitor the situation and will update this information as needed.

Q: After reading your Question of the Week regarding Cold Calls, I would like to know if there are any limitations on email solicitations and email advertising?

A: Yes; a federal law entitled the CAN-SPAM Act of 2003 (the “Act”) regulates commercial email.  Commercial email is defined as “the commercial advertisement or promotion of a commercial product or service.”  Commercial emails can be bulk email messages, which are sent to many recipients, or individual messages sent to just one person or just one business. Since each separate email message that violates the Act can subject the sender to penalties of up to $16,000, it’s important to meet these requirements of the law:  

  1. Be sure that the “From,” “To,” “Reply-To,” and routing information, including the originating domain name and email address, accurately identify the sender of the email message.
  2. Use accurate subject lines.
  3. Make it clear that the message is an advertisement.
  4. Provide a valid physical postal address (it can be a current street address or a post office box with either the U.S. Postal Service or with a commercial mail receiving agency).
  5. Clearly provide a way for recipients to unsubscribe or opt out of future mailings.
  6. Handle opt-out requests promptly (within 10 business days). Each message sent more than 10 days after the recipient unsubscribes or opts out can result in up to $16,000 in penalties.
  7. Once recipients have opted out or unsubscribed, you may not do anything more with their email addresses (you cannot sell or transfer them in any way).

IMPORTANT TIP:  It is always your responsibility to monitor what another party does on your behalf with respect to commercial email messages. Whether it is a company you have hired to run and manage an email ad campaign, or a company you pay to monitor CAN-SPAM compliance, you are all equally liable for violations of the Act.  Accordingly, be sure that everyone who handles email advertisements/solicitations for you or your company is aware of these restrictions and complies with them. Violations by you or your employees, agents or contractors can be very costly.  Furthermore, because email solicitations are deemed to be advertising, the New York State DOS Advertising Regulations must be complied with, as well.

The Legal Line Question by:
Neil B. Garfinkel
REBNY Broker Counsel

Partner-in-charge of real estate and banking practices at Abrams Garfinkel Margolis Bergson, LLP