We’re back with part three in our email compliance article series taking a deep dive into some of the key facets of CAN-SPAM compliance. Previously, we have focused on the requirements around email header information and subjects lines.
Email is one of the most important communication tools for the vast majority of businesses. From transactional emails (confirming orders, shipping, invoicing, etc.) to newsletters and customer acquisition or retention, the email channel is a core part of a typical marketing strategy. So, it’s a pretty reasonable question for marketers to ask about which types of business email fall under the CAN-SPAM Act.
CAN-SPAM lays this out by defining the term Commercial Electronic Mail Message (i.e. Commercial Email) and differentiating it from other types of email, including other types of business-related email. Both the law itself and the FTC’s CAN-SPAM Act: A Compliance Guide for Business provide a lot of guidance on how to determine whether an email falls under the definition of a Commercial Email or not.
In this blog post, we will provide information on what the CAN-SPAM Act identifies as Commercial Email and how it differentiates from other types of business email, by looking at the text of the regulation and guidance from the FTC.
What does The CAN-SPAM Act say about compliance?
(2) Commercial electronic mail message
(A) In general
The term “commercial electronic mail message” means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).
How does this differ from other types of business-related email?
(B) Transactional or relationship messages
The term “commercial electronic mail message” does not include a transactional or relationship message.
(17) Transactional or relationship message
(A) In general
The term “transactional or relationship message” means an electronic mail message the primary purpose of which is—
(i) to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;
(ii) to provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;
(iii) to provide—
(I) notification concerning a change in the terms or features of;
(II) notification of a change in the recipient’s standing or status with respect to; or
(III) at regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender;
(iv) to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or
(v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.
This is all great info, but the FTC provides some further information in their CAN-SPAM FAQ section, along with examples, to help businesses and marketers identify a Commercial Email.
From the FTC’s CAN-SPAM Act: A Compliance Guide for Business
(The following large section is from the FTC’s CAN-SPAM Compliance Guide.)
Q: How do I know if the CAN-SPAM Act covers email my business is sending?
A: What matters is the “primary purpose” of the message. To determine the primary purpose, remember that an email can contain three different types of information:
- Commercial content – which advertises or promotes a commercial product or service, including content on a website operated for a commercial purpose;
- Transactional or relationship content – which facilitates an already agreed-upon transaction or updates a customer about an ongoing transaction; and
- Other content – which is neither commercial nor transactional or relationship.
If the message contains only commercial content, its primary purpose is commercial and it must comply with the requirements of CAN-SPAM. If it contains only transactional or relationship content, its primary purpose is transactional or relationship. In that case, it may not contain false or misleading routing information, but is otherwise exempt from most provisions of the CAN-SPAM Act.
Q: How do I know if what I’m sending is a transactional or relationship message?
A: The primary purpose of an email is transactional or relationship if it consists only of content that:
- facilitates or confirms a commercial transaction that the recipient already has agreed to;
- gives warranty, recall, safety, or security information about a product or service;
- gives information about a change in terms or features or account balance information regarding a membership, subscription, account, loan or other ongoing commercial relationship;
- provides information about an employment relationship or employee benefits; or
- delivers goods or services as part of a transaction that the recipient already has agreed to.
Q: What if the message combines commercial content and transactional or relationship content?
A: It’s common for email sent by businesses to mix commercial content and transactional or relationship content. When an email contains both kinds of content, the primary purpose of the message is the deciding factor. Here’s how to make that determination: If a recipient reasonably interpreting the subject line would likely conclude that the message contains an advertisement or promotion for a commercial product or service or if the message’s transactional or relationship content does not appear mainly at the beginning of the message, the primary purpose of the message is commercial. So, when a message contains both kinds of content – commercial and transactional or relationship – if the subject line would lead the recipient to think it’s a commercial message, it’s a commercial message for CAN-SPAM purposes. Similarly, if the bulk of the transactional or relationship part of the message doesn’t appear at the beginning, it’s a commercial message under the CAN-SPAM Act.
Here’s an example:
TO: Jane Smith
FR: XYZ Distributing
RE: Your Account Statement
We shipped your order of 25,000 deluxe widgets to your Springfield warehouse on June 1st. We hope you received them in good working order. Please call our Customer Service Office at (877) 555-7726 if any widgets were damaged in transit. Per our contract, we must receive your payment of $1,000 by June 30th. If not, we will impose a 10% surcharge for late payment. If you have any questions, please contact our Accounts Receivable Department.
Visit our website for our exciting new line of mini-widgets!
MESSAGE A is most likely a transactional or relationship message subject only to CAN-SPAM’s requirement of truthful routing information. One important factor is that information about the customer’s account is at the beginning of the message and the brief commercial portion of the message is at the end.
TO: Jane Smith
FR: XYZ Distributing
RE: Your Account Statement
We offer a wide variety of widgets in the most popular designer colors and styles – all at low, low discount prices. Visit our website for our exciting new line of mini-widgets!
Sizzling Summer Special: Order by June 30th and all waterproof commercial-grade super-widgets are 20% off. Show us a bid from one of our competitors and we’ll match it. XYZ Distributing will not be undersold.
Your order has been filled and will be delivered on Friday, June 1st.
MESSAGE B is most likely a commercial message subject to all CAN-SPAM’s requirements. Although the subject line is “Your Account Statement” – generally a sign of a transactional or relationship message – the information at the beginning of the message is commercial in nature and the brief transactional or relationship portion of the message is at the end.
Q: What if the message combines elements of both a commercial message and a message with content defined as “other”?
A: In that case, the primary purpose of the message is commercial and the provisions of the CAN-SPAM Act apply if:
- A recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a commercial product or service; and
- A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is to advertise or promote a product or service.
Factors relevant to that interpretation include the location of the commercial content (for example, is it at the beginning of the message?); how much of the message is dedicated to commercial content; and how color, graphics, type size, style, etc., are used to highlight the commercial content.
The Legal Disclaimer
Nothing in this text should be construed as legal advice. We highly recommend that you familiarize yourself with the various information sources regarding CAN-SPAM compliance on the FTC website. Additionally, you may choose to obtain professional legal advice regarding your company’s email compliance efforts, related to CAN-SPAM or other relevant regulations that impact email marketing.