USA Law and Practice Contributed by: Katelyn Patton, Frankfurt Kurnit Klein & Selz
• The message must clearly and conspicuously notify how they can opt out of receiving future commercial emails from the sender. • Any opt-out mechanism offered must be able to process opt-out requests for at least 30 days after the message is sent and all opt-out requests must be processed within ten business days of receipt. This requires email marketers (and their vendors) to scrub their recipient lists against their do-not-email lists before each deployment. Each separate email in violation of the law is subject to penalties of up to USD53,088. Emails that make mis - leading claims about products or services may also be subject to laws outlawing deceptive advertising, including Section 5 of the FTC Act. 6.2 Telemarketing The Telephone Consumer Protection Act (TCPA), enforced by the FCC, and the Telemarketing Sales Rule (TSR), enforced by the FTC, regulate telemar - keting calls and text messages, as do a patchwork of state telemarketing and do-not-call laws. Broadly speaking, the TCPA restricts callers from making robo-calls and robo-texts unless they have received the appropriate prior express consent of the recipient, subject to several exemptions. It also requires telemarketers to provide an automated, inter - active “opt-out” mechanism. The TCPA also contains provisions requiring identification by the caller and prohibits calls to emergency lines or lines serving hospitals, among other provisions. In 2024, the FCC adopted new rules intended to strengthen consum - ers’ ability to revoke consent to receive robo-calls and robo-texts, in addition to strengthening callers’ and texters’ obligations to honour such requests in a timely manner. The FCC previously revised its TCPA rules to establish the national Do-Not-Call Registry, which prohibits companies from contacting listed cus - tomers. The TSR requires telemarketers to make specific dis - closures of material information, prohibits misrepre - sentations, sets limits on the times telemarketers may call consumers, prohibits calls to a consumer who has asked not to be called again, and sets payment restrictions for the sale of certain goods and services.
The TCPA allows individuals to sue for damages rang - ing from USD500 to USD1,500 per telephone call or text message sent in violation of the statute. Viola - tions of the TSR are subject to civil penalties of up to USD53,088 per violation. In addition, violators may be subject to nationwide injunctions that prohibit cer - tain conduct, and may be required to pay redress to injured consumers. 6.3 Text Messaging Text messages are typically considered to be syn - onymous with “calls” under both the TCPA and the TSR. Marketers must therefore have the proper level of consent to send a text to a recipient’s mobile phone if they are using regulated technology or contacting a number on the national Do-Not-Call Registry and must comply with the same opt-out requirements. 6.4 Targeted/Interest-Based Advertising Several state privacy laws address, in part, consum - ers’ concerns with marketers’ collection and use of personal data and impose strict obligations on tar - geted advertising practices. These state laws require marketers to inform consumers about their personal data collection practices, to delete and correct con - sumers’ personal data, and to block advertising that relies on cookies, pixels and related tracking tech - nologies. For instance, several state statutes provide a right to opt out of the sale or processing of one’s personal data for the purposes of targeted advertising or profiling. By the beginning of 2026, 19 states will have comprehensive privacy laws in effect. Although there are nuances to the specific requirements of these laws, they all provide consumers with some version of the right to opt out of the sale or sharing of their personal information for the purpose of targeted advertising. One state privacy law enacted in Maryland, effective 1 October 2025, imposes novel restrictions concern - ing the collection and processing of personal data on businesses that may impact advertising. Businesses must limit collection of personal data to what is “rea - sonably necessary and proportionate to provide or maintain a specific product or service requested by the consumer”. Processing of personal data must be limited to what is necessary to or compatible with the purposes disclosed to the individual, meaning any
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