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Why am I Reading Your Email?: “Pay to Play” and the FTC
Posted by
John E Grant
on January 18, 2010
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There's an interesting dustup on The Stranger's Slog concerning a blast email from a popular Seattle restaurant. It offers two lessons on etiquette and legal compliance in the digital age.
The first post is fairly pedestrian: David Schmader writes about the fact that any replies to the original email seemed to automatically trigger a "reply all" effect on the listserv used to send the email. We've all seen this—first a few people post something like "take me off your list," then a few respond with "quit using reply-all," and eventually everyone's inbox is crammed with a jillion messages, most of which have nothing to do with them.
The etiquette lesson here is obvious, the legal compliance perhaps less so (although commenters danced all around it). The CAN-SPAM act requires that any business sending commercial email comply with a strict set of standards, and each separate email that violates those standards can trigger a $16,000 fine from the FTC. Ouch. Compliance isn't tough, but at first glance it looks to me like the restaurant may have missed a few points. The FTC offers a nice clear guide on complying with the law. If you send email for your business, you MUST read it.
The second post is juicier. Turns out one of the responses came from a food reporter and blogger for a prominent radio station offering a trade of "two radio spots (or blog posts, your choice) for 2 seats at the dinner." In other words, pay to play.
Assuming anyone took the reporter up on her offer, the situation could trigger FTC attention on an entirely different topic: the new guidelines covering product endorsements. Those guidelines make it clear that "When there exists a material connection [such as the receipt of free products or services] between the endorser and the seller of the advertised product . . . such connection must be fully disclosed." So leaving ethics of a pay to play system aside, not disclosing such a system's existence is a clear FTC violation.
[Update] Both the reporter and the restaurant have chimed in to say that the whole "pay to play" thing was meant as a joke (offering a third lesson on the inability of internet users to see tongues in cheeks). Seems credible, but the possible FTC issues illustrated by the matter remain.
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