It's been a month since the Can-Spam Act (S. 877) became law. What effect does it have on catalogers that use e-mail marketing?

On the plus side, the bill overrides tougher state laws, such as one in California (S. 186) that had been set to take effect Jan. 1. The California law sought to punish virtually all marketers, even legitimate mailers, who sent marketing e-mail to someone who hadn't specifically requested it.

And by requiring e-mail advertisers to include a functioning return address clearly visible to recipients, a clearly stated opt-out, and a 10-business-day limit after which opt-outs from consumers must be honored or the e-mailer faces penalties (see “Can-Spam in Brief,” at right), the law could help remove the stigma from e-mail marketing. Sen. Ron Wyden (D-OR), who with Sen. Conrad Burns (R-MT) introduced the bill, called it “an important step toward stopping the kingpin spammers and stemming the flow of garbage into America's inboxes.”

Although it doesn't approve of Can-Spam unconditionally, the Direct Market Association does like the message that the law sends. “It says to consumers, ‘Look, there is a new level of transparency out there that's legislated, and legitimate e-mail marketers will follow it,’” says DMA spokesperson Lou Mastria.

Many legitimate marketers, of course, were following most of the provisions of the bill before they were mandated. Other requirements, such as including a physical address in e-mails, are easy to implement. “It's only a minor tweak to include their postal addresses in e-mails,” says Reggie Brady, president of Reggie Brady Marketing Solutions, a Norwalk, CT-based consulting firm, “as they just have to add the address to a template.”

On the down side, legitimate e-mail could find it more difficult to pass through spam filters, since the law forces unsolicited advertising e-mails to carry “ADV” on the subject line — an abbreviation that triggers many filters.

And some worry that because of a quirk that allows marketers to sell lists of consumers who had opted out to other marketers who can then initiate contact with those consumers, spam may actually increase. (See “Can-Spam's Nasty Side,” page 26.)

“If this law is perceived by the public as not having enough teeth,” says Neal Denton, executive director of the Washington-based Alliance of Nonprofit Mailers, “they're going to want to come back and do it again.” In other words, it could result in stiffer e-mail bills in Congress.

Formally the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, Can-Spam has one provision that could dramatically alter the e-mail marketing programs of even law-abiding mailers: It requires the Federal Trade Commission to write by next fall a plan for a do-not-e-mail list similar to the do-not-call list it implemented this past fall. The law also gives the FTC the authority to implement such a list.

“Even if there is a do-not-e-mail list, that won't affect anybody who's already gotten permission,” Brady contends. But a do-not-e-mail list would force catalogers to take extra steps — such as checking the list even when customers request e-mails — which could make what is now a relatively inexpensive marketing tool more costly.