Talk Of Do Not Mail Getting Louder

December 1, 2007       Marla Nobles      

Seven states have slated do-not-mail legislative agendas for 2008 and the pressure is starting to build from environmental groups that want to reduce the amount of waste entering landfills.

As of early November, eight do-not-mail bills in seven states have been slated for the upcoming 2008 legislative sessions: Hawaii, Michigan, New York, North Carolina, Rhode Island, Vermont and Washington. Washington has one bill in its House and one in its Senate.

Legislation around establishing a state-run do-not-mail registry, similar to do-not-call legislation, has been occurring in some form in state legislatures for the past few years. Three states had do-not-mail legislation under consideration during 2005. That number increased to four during 2006, and this year the number of states with do-not-mail legislation inflated to 15.

None passed.

“Anytime you’re looking at do-not-mail legislation, you’re looking at something that is a threat to the entire direct marketing community,” said Kelly Browning, executive vice president and chief operating officer,  American Institute for Cancer Research, in Washington, D.C., and vice chairman of the Direct Marketing Association (DMA) board of directors.

A number of do-not-mail bills exempt nonprofit mailers. The impact to commercial counterparts, however, will be significant enough to impact all mailers. “The trickle down effect would really have a choking effect,” said Browning, “because the nonprofitsÉcannot generate enough of that information to sustain the whole nonprofit arena. It will affect us drastically and it will have an even more choking effect on some of the smaller groups that depend only on nonprofit names.”

One factor lending some credence to do-not-mail initiatives, said Tony Conway, executive director of the Alliance of Nonprofit Mailers in Washington, D.C., is the public’s perception of postal mail. “It’s a very common misconception in this country amongst citizens that if the postal service didn’t have to handle all that, as they refer to it, ‘junk mail,’ postage rates wouldn’t be so high and the mailbox wouldn’t be fraught with so much stuff,” said Conway.

“That is a very strong misconception; the opposite is true.”

What is also true is the critical nature of the commercial or advertising mail volume to the health of the United States Postal Service (USPS). The nearly $20 billion it generates represents needed revenue that helps to cover the costs of maintaining a nationwide, universal mail delivery system. And it’s particularly important today as first-class mail, which traditionally had paid most of the USPS’ bills, has declined by more than 5.7 billion pieces since 2001, according to the USPS, despite a slight increase from 2004 to 2005.

Taking Action Do-not-mail legislation coupled with the issues of consumer annoyance and environmental concern, has sparked separate movements by consumers, lawmakers and environmental groups toward one similar goal: less “junk mail.”

To address these efforts and the negative impacts they will have on the entire direct marketing industry, nonprofits in particular, the New York City-based DMA, along with one of its affiliated groups, the DMA Nonprofit Federation (DMANF), last year launched three efforts: Mail Moves America (MMA), Commitment to Consumer Choice (CCC) and the Green 15. The goal was to get out in front before the issues took on even more heat.

Do-not-mail There are many reasons the do-not-mail bills are not likely to pass, said Geoffrey Peters, president of Creative Direct Response in Bowie, Md., and a member on the DMANF Advisory Council. Among them are legal questions around the bills’ constitutionality. “The First Amendment to the Constitution as interpreted by the (U.S.) Supreme Court in several decisions makes it clear that charitable solicitations are fully protected free speech,” said Peters. “Thus, just as the federal government did with the do-not-call legislation, the nonprofits would need to be exempted for the legislation to pass constitutional muster.”

Added Peters: “Citizens have the right to ignore free speech (charitable solicitations) but they don’t have the right to avoid it.  There’s not going to be a successful bill that doesn’t exempt nonprofits.”

There are also questions about whether the U.S. Constitution limits authority over the mail to the federal government, or if authority is given to the states specifically by the government. The bills vary state-to-state. In most cases, nonprofits and candidates for office would be exempt. Some of the bills only exempt public charities (i.e. 501(c)(3)s) from their do-not-mail lists, so civic leagues (501(c)4s) and trade associations (501(c)(6)s) would still be affected by the proposed bills. In all cases, marketers who mail solicitations to individuals on the do-not-mail lists would face fines of several thousand dollars per violation.

The DMA, along with 25 other trade associations and approximately 30 companies and unions, formed MMA at the end of 2006. The broad-based coalition was established for two chief purposes: defend against do-not-mail legislation and develop a more positive message and image for advertising and commercial mail. For its part, the USPS has written letters to sponsors of all the pending bills, opposing the measures and encouraging lawmakers to reconsider their stance.

“We’re going to reach out and talk to every legislator who has either introduced or is thinking about introducing a bill,” said Steve Berry, the DMA’s executive vice president of government affairs. “We also want to get the USPS on board. So far they have not been wishing to step out there in any high-profile manner.”  The DMA said its goal is to raise $700,000 for MMA by next month.

To address the issue of consumer annoyance and other concerns such as identity theft and relevancy, key arguments by proponents of do-not-mail laws, the DMA launched the CCC at the group’s annual nonprofit conference this past October. The DMA announced compliance with the measure would be required of all DMA members by October 2008.

The CCC requires members to provide donors and prospects with notice of an opportunity to opt out of and modify future mail solicitations to be present on each solicitation mailing. The provision does not apply to business-to-business, informational, fulfillment, thank you, or volunteer-request mailings. Right now, the provision applies to any solicitation regardless of acquisition, renewal, acknowledgment, or otherwise. As of presstime, it was being argued that the provision should not apply to acquisition mail, on the grounds that the charity doesn’t own those lists until the person receiving the mail responds.

Jim Conway, the DMA’s vice president of government relations, said the sector is seeing a growing number of groups pushing initiatives to reduce or eliminate commercial or nonprofit solicitation mail. Conway listed three such initiatives: 41pounds.org, Green- dimes.org and Catalogchoice.org, opt-out services led by nonprofits to reduce unwanted mail solicitations and thus eliminate waste.

More than 84,000 users signed up to Catalog Choice three weeks after its launch in October.  The free service was developed by National Wildlife Federation, the Natural Resources Defense Council, and the Ecology Center, and funded by The Overbrook Foundation, the Kendeda Fund and the Merck Family Fund.

“Unlike the do-not-call registry, we’re not trying to block out every catalog company to your mailbox,” said Stephen Foster, president and CEO of The Overbrook Foundation, which has granted around $550,000 “to reduce wasteful catalog consumption in the United States.”

Foster said Catalog Choice users can select a cataloger, for-profit or nonprofit, “and opt out of receiving future mailings from them and only them.”

The DMA’s version of the opt-out service, the Mail Preference Service (MPS), gives users two options: mail and do-not-mail. Some critics argue the MPS lacks flexibility; others argue it unnecessarily and unfairly groups together nonprofit mail with the more inflammatory commercial mail.  The DMA’s Conway said the group plans to modify the service.

Conway said the group also plans to establish the Green 15, guidelines for recycling, printing and packaging, to make direct marketing more environmentally friendly. “We’re in the process right now of reaching out to members to set benchmark standards on what type of recommendations the DMA board will be making to the industry,” said Conway, “and improving our environmental footprint.”

Many industry leaders stress the relatively slight impact nonprofit mail has on the accumulation of waste. “Nonprofits more so than commercial organizations are notoriously circumspect about making sure that they try very hard to only get the message to people that are likely to respond and want the message,” said Peters. A study completed by the federal government’s General Accountability Office suggests that less than 3 percent of municipal landfills are represented by unused or discarded mail.

“It’s a perception issue,” said the Alliance’s Conway.  “And there’s concern, and I certainly share that concern. You have one or more of these things kind of get tied together, partially environmental concern, partially the annoyance issue, and it’s important for the industry and for those that use the mail to be sensitive to that, and look for things that one can do now to address those issues.”  NPT