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Fraudulent Email Prohibitions Supplement CAN-SPAM

Cover of the California Business and Professions Code, which has a section about fraudulent emailIn Commercial E-mail and CAN-SPAM: What You Need to Know, I discussed how the federal CAN-SPAM Act makes commercial email more truthful, more transparent and more avoidable. This post addresses how California law concerning fraudulent email supplements CAN-SPAM.

In particular, this post discusses preemption, by which, under certain circumstances, U.S. federal laws can invalidate state laws that address a given subject matter.

Federal Preemption by CAN-SPAM

Many states (including California) had passed anti-spam legislation before CAN-SPAM took effect. In an effort to set a national standard, CAN-SPAM preempted state laws that regulate the content of commercial email.

However, there is an exception. State laws that prohibit “falsity or deception in any portion of a commercial electronic mail message or information attached thereto” are not preempted. 17 U.S.C. Section 7707(b)(1) (Emphasis added.)

Fraudulent Email Prohibited in California

California Business and Professions Code Section 17529.5(a) pertains to commercial email advertisements sent to or from California email addresses. Prohibited emails include, among others, the following.

  • Those that contain, or are accompanied by, “falsified, misrepresented, or forged header information.”
  • Those that have “a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message.”

In Hypertouch, Inc. v. ValueClick, Inc., the California Court of Appeal for the Second District held that Section 17529.5 is not preempted by CAN-SPAM. The court noted, based on legislative history, that the Section “was intended to apply to entities that advertise in deceptive commercial e-mails, not only the spammers who send them.”

As a result, California’s prohibition against fraudulent email supplements, and is not displaced by, CAN-SPAM.

Dana H. Shultz, Attorney at Law  +1 510-547-0545  dana [at] danashultz [dot] com
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