CAN-SPAM: A study in “mask” communication

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We loved Scooby-Doo as much as the next person, but each episode seemed to end the same way. Just when Shaggy, Fred, Velma, and Daphne nabbed the culprit, he took off a mask to disclose his identity – or so we thought until he removed yet another mask to reveal who he really was. The FTC has filed a lawsuit against an operation that allegedly used illegal spam and fake news sites to peddle purported diet products and employed multiple online “masks” to deceive consumers about what they’re really up to.

Florida-based Colby Fox, Christopher Reinhold, Tachht, Inc., and Teqqi LLC sold Original Pure Forskolin, Original White Kidney Bean, and Mango Boost Cleanse on their websites. They also promoted their products through affiliate marketers, who steered consumers to the defendants’ sites and got a cut of the sales their links generate.

One common tactic used by the defendants and their affiliates is to send what the complaint calls “unsolicited commercial electronic mail messages,” but they don’t look like garden variety spam.

Which brings us to Mask #1. These messages use multiple methods to falsely convey they were sent by a friend or family member, including misleading FROM: addresses. In addition, the subject lines often include the recipient’s name, reinforcing the false impression that the recipient knows the sender.

Then there’s Mask #2. Once consumers open the email, they see chatty greetings like “Hi! CNN says this is one of the best” or “Hi! Have you already seen it?” and accompanying links that send them to what look like news sites. Some of those pages feature dramatic before-and-after photos and even drop famous names – for example, “Insider Report: Oprah and Other Celebrities Lose 4 lbs / Week of Belly Fat With This Secret That Our Readers Can Try Now!” But according to the complaint, they aren’t real news sites. They’re paid ads that mimic the look of media outlets and include links to drive consumers to the sites where defendants sell their diet products.

The FTC says those sales sites are rife with deception, too. For example, they prominently feature claims like “Burn Fat Quicker Without Dieting or Exercise” and include “Act now!” nudges like this:

ATTENTION: Due to recently being featured on T.V. we cannot guarantee supply. As of [date website visited] we currently have product IN STOCK and ship within 24 hours of purchase.

According to the complaint, the defendants have made deceptive weight loss claims and used false endorsements. (Spoiler alert: Ms. Winfrey doesn’t really endorse the product.) In addition, the FTC says the defendants violated the CAN-SPAM Act by paying for spam email that had deceptive header information and subject lines. The complaint also charges that they failed to provide an opt-out notice, an effective opt-out mechanism, and a physical postal address.

The case was just filed in federal court in Tampa, but it offers a reminder of what CAN-SPAM requires. Whether CAN-SPAM classifies you as an “initiator” or a “sender,” liability under the law is broad and it’s unwise to assume compliance is someone else’s responsibility. Read The CAN-SPAM Act: A Compliance Guide for Business for more information or watch this video.



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