Marketers must follow the FTC’s CAN-SPAM guidelines as they apply to transactional messages; however, transactional emails are frequently embedded with promotional content. We’ve found that retailers can, on average, generate an additional $2.9 million annually by including promotions in their transactional communications. When content gets mixed in together, we often hear clients asking: where is the line drawn between promotional and transactional messages?

While there is no silver bullet for determining the difference between each message type, there are some guidelines that can help you determine whether or not the message will be subject to the CAN-SPAM Act. The FTC places a great deal of weight on the subject line of a message, so if the subject line would lead the recipient to think it’s a transactional message, it’s a transactional message for CAN-SPAM purposes.  Additionally, the content of the message matters.  If the majority of the message is commercial, or the bulk of the transactional part of the message doesn’t appear at the beginning of the message, CAN-SPAM considers the message a commercial one.

Regardless of message type, there are a few best practices to keep in mind to comply with CAN-SPAM (and maintain a good sender reputation).

  • Request consent to send commercial emails, and allow users to opt-out from receiving them in the future. Doing so puts the control in the hands of the consumer, and will help to build trust in your company’s future communications.
  • Disclose clearly the point of your email in the subject line. This is important for remaining CAN-SPAM compliant, as well as for drawing in customers with descriptive text.
  • CAN-SPAM requires that opt-outs are processed in 10 days, but today's consumers are used to instantaneous results; process opt-outs as soon as possible to keep up with their expectations.
  • Monitor what others are doing on your behalf.Both the company whose product is promoted in the message and the company that actually sends the message may be held legally responsible. Work with your email marketing partners and your legal department to make sure your messaging is compliant.
  • Don't try to game the system.  If you find yourself trying to come up with a "work around" for a CAN-SPAM concern (my favorite is "do we have to opt consumers out of every  one of our lists if they really only tried to opt out of one?), it's a bad idea.  Apply your common sense here.  Ultimately, law or no, your goal should be to do what is right for your customer.