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The FTC recently released a clarification of what CAN SPAM is talking about when referring to whether the primary purpose of an email is commercial or transactional. The 80 page clarification, (available here: http://www.ftc.gov/os/2005/01/050112canspamfrn.pdf ) primarily aims to clarify how to categorize messages which may have both transaction and commercial pieces.
Classifying a message as commercial or transactional is easy if the messages are used solely for either of those purposes. Mixed purpose messages, such as newsletters or billing statements which include promotional commercial copy, can fall in either category depending on the way the materials are presented. Such mixed use messages may be considered commercial if the following is true:
- A recipient reading the subject line would conclude that the message is commercial in nature.
- The transactional content does not substantially appear at the beginning of the body of the message.
For example, you want to send a “Re-Subscribe!” message to all your magazine readers whose subscriptions are about to lapse. This by itself would be considered a transactional message, as you are communicating to your readers about a service that you provide them. If you also want to include a 20%-Off promotion offer in the email, your message will be considered commercial if you mention the offer in your subject line or place the offer content before the instructions to renew the subscription.
The idea behind this is that if a mixed message is to be considered transactional, the transactional content should receive top billing; the reader should not have to wade through ads and offers before reaching the transactional content.
The clarification also addresses a potential loophole that existed, with email content that can’t be considered commercial or transactional, such as meaningless words and paragraphs included by spammers to throw off spam filters. In these cases, the “net impression” that the reader gets when viewing the message is the deciding factor.
The FTC's clarification is important to email marketers because if a message is deemed to be commercial in nature, the CAN-SPAM Act requires the message include labeling that identifies it as promotional or an advertisement. For more information on this clarification and background on the CAN-SPAM Act visit:
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