spam1Well, nothing really, but the explosion of the use of email also means there was an explosion of unwanted marketing messages in our inboxes. So Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) with the intent to regulate unsolicited commercial email.

Two things are important to note here.

1) the regulation applies to both commercial and “unsolicited” commercial emails, and

2) it does not outright ban unsolicited commercial emails, but rather provides guidelines for the content of these messages and requires that consumers be able to request (or opt out) of receiving further messages.

This article will discusses the use of commercial emails and does not relate to email marketing for sexually-oriented material, affiliate marketing, emails with multiple senders or emailing via mobile messaging to mobile devices.

First we need a definition of “commercial” email. According to the CAN-SPAM Act, it means any email that has a “primary purpose of…commercial advertisement or promotion of commercial product or service.” (15 U.S.C. §7702(2)(A). It does not matter if it is a commercial email sent to a business account or a consumer/individual account.

But not every message sent from a business is automatically considered a “commercial” message for purposes of the CAN-SPAM Act. The Act does exempt messages that have the primary purpose relating to a specific transaction or relationship between the sender and receiver. (15 U.S.C. §7702(2)(B)).

Here are 5 types of emails that may be exempt:

  1. The email is intended to facilitate, complete or confirm a commercial transaction previously agreed to by the email recipient — for instance, a receipt from a purchase or confirmation of an order.
  2. Provide information related to a subscription, membership, account, loan or similar ongoing relationship for a current customer or user.
  3. Messages that only convey information on product warranties, safety or recall information for products purchased by the recipient.
  4. Information regarding employment relationship or related benefits plans in which the recipient is currently enrolled.
  5. Delivery of goods or services (upgrades) that the recipient is entitled to as a result of a previous purchase.

The caveat here is that the in order to qualify for the exemption, it has to meet a primary purpose test. So even if the primary purpose intended is only “transactional”, adding promotional content of any kind, will likely make the email fall within the commercial email category. For example, if you email a receipt to someone, but also include specials of the week, or promotions for other items or services, or even links to your ecommerce website it may be considered commercial email that is regulated by the CAN-SPAM Act.

It is viewed from the perspective of the recipient. If, from the subject line they would interpret it to contain commercial advertising or if the transactional content of the email is buried in the message with significant commercial content, then the primary purpose will be considered commercial, NOT transactional.

The point here is not to split hairs on what is and what is not considered commercial email, but to just ensure that your emails are compliant with the Can-SPAM Act so it is not an issue.

So what do you need to do to be compliant?

  1. The email has to clearly and truthfully identify the sender and not contain false or misleading information about who is sending it — including the To, From and Reply to information.
  2. It can not contain a deceptive subject heading which might mislead the recipient as to the content of the message or subject matter
  3. The email has to provide clear notice of the option to not receive future emails by providing a functional return email address or an opt-out mechanism for at least 30 days after the message is sent.

The Opt out:

  • Can not require a fee
  • Can not require the recipient to provide any more information other than email address and opt out preferences
  • Can only provide a follow up message to the opt out
  • Must be effective within10 business days
  • Never expires
  • Prohibits the transfer, sale or any use of the email without the recipient opting in again.
  1. Clearly identify the message as an advertisement.
  2. The email must contain a valid physical postal address.

If you are sending emails related to any business purpose even remotely commercial or advertising in nature, you should ensure that they are CAN-SPAM compliant.

Many email marketing service providers already require compliance when using their service and monitor accounts for abnormal levels of bounces and spam complaints. However, it is the responsibility of the sender to be compliant, not the responsibility of the email service provider. And if you are not compliant, penalties are hefty — up to $16,000 per email. Yikes!