What constitutes a transactional message?

"Is this message transactional, or is it commercial?"
That's a question I get asked quite regularly as a deliverability consultant. Note that I am not a lawyer, so I can't give you legal advice. I can, however, provide my layman's interpretation and encourage you to investigate for yourself, suggest to you where you need to look, and you can throw it all to your legal counsel, for a final ruling on the matter, if needed.

Assuming you are based in the US and are sending (only) to US-based recipients, the US federal CAN-SPAM law applies. The text of the law itself (section 3) provides a fairly straightforward definition of what constitutes a transactional message, and the FTC later published even more helpful clarifying definitions -- which is what you should read, memorize, and bookmark for future reference. It starts with this. It's transactional, if the primary purpose of the email message is:

  • to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender;
  • 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;
    • to provide notification concerning a change in the terms or features of;
    • to provide notification of a change in the recipient's standing or status with respect to; or
    • to provide 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;
  • to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or
  • 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.
In other words, is the email meant to close or complete a transaction or purchase? Is it a warranty or recall notification? Does it warn of a change in terms or features of a product or subscription? Is it a periodic account balance notification? Is it related to the recipient's employment with the sender? Is it needed to deliver a service the recipient has paid for? These are all questions that seem, if you answer yes, to indicate that a message is transactional is nature.

The FTC doesn't seem to prohibit marketing content in a transactional email message, but they do warn you against marketing-oriented subject lines, and that you could be in trouble if your "above the fold" body content is marketing-oriented.

The goal here is to be sure to send marketing content only to those who have:

  • opted-in, and
  • not opted-out.

You can send transactional email messages to people who have not consented to receive marketing emails from you. To be clear, yes, you should be sending your order confirmation emails, password reset emails, and so forth, to people even if they have unsubscribed from marketing emails.

But if your transactional messages contain too much marketing content, you risk the interpretation that the message is actually commercial in nature. And if it's commercial, it's not okay to send it to those who have previously unsubscribed from (or never opted-in to) marketing email. CAN-SPAM enforcement action may be rare, but don't be that lucky one that catches the FTC's eye for doing the wrong thing. (And remember that ISPs and mailbox providers will NOT take kindly to those who don't comply with CAN-SPAM.)

When sending to recipients in Canada, the Canadian anti-spam legislation (CASL) applies, and its standards are a bit different. The most common guidance you're going to find out there suggests that an email message sent to a recipient in Canada counts as a CEM (commercial email message) if it contains any marketing content at all. Thus, there is no "primary purpose" test to apply -- if it contains even a drop of marketing content, it is a marketing message, and all the rules around marketing messages (opt-in, etc.) apply. In other words, don't put marketing content in your order notifications, password resets, etc. Consider that perhaps a bit simplistics, but hopefully a good starting point. Ample detailed guidance is to found elsewhere online. Here's links to guidance from Mailchimp and Sparkpost.

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