California's Prohibition Against E-mail Inquiries Not Preempted

In Powers v. Pottery Barn, decided on September 22, 2009, a California Court of Appeal held that California's Song-Beverly Credit Card Act ("Song-Beverly") was not pre-empted by the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM.") Song-Beverly prevents businesses and others who accept credit card payments from requesting, requiring, or obtaining written personal identification information, such as the cardholder's address and telephone number. CAN-SPAM subjects the sender of any unsolicited commercial email message to liability unless the email provides an opt-out mechanism from future emails, an accurate subject line, an accurate identification of the sender, a physical address of the sender, and a warning if the email contains adult material. The Court held that CAN-SPAM did not pre-empt Song Beverly because Song-Beverly does not expressly regulate internet activity, let alone commercial emails, and the CAN-SPAM pre-emption clause expressly excludes state laws that are not specific to email.
The bottom line is that Song-Beverly's prohibitions respecting credit card transactions remain fully enforceable in California.