On August 14, 2023, the Federal Trade Commission announced a proposed order against Experian Consumer Services (“Experian”) for failure to comply with the federal CAN-SPAM Act. The complaint alleges that Experian sent marketing emails that did not provide an unsubscribe opportunity to consumers who had signed up for Experian’s credit monitoring services. The CAN-SPAM Act requires businesses to, in relevant part, clearly and conspicuously display a return email address or Internet-based mechanism that allows consumers to unsubscribe from future marketing emails. While the Experian emails contained a notice stating that the messages related to the consumer’s Experian account (which would make them “transactional” or “relationship” messages under the CAN-SPAM Act, and therefore exempt from the unsubscribe requirement), the complaint alleged that, in actuality, the emails contained only marketing material.
Under the terms of the proposed order, Experian must pay a $650,000 penalty and refrain from sending consumers marketing emails that do not offer an unsubscribe mechanism. The proposed order also notably prohibits Experian from classifying marketing emails as transactional or relationship messages where the primary purpose of the message is to advertise or promote a commercial or service, even if the product or service is included in the consumer’s existing Experian membership. The proposed order must be approved by a federal court before it can go into effect.