FTC Assesses Primary Purpose Of Emails In CAN SPAM Enforcement

As most people know – either from professional or personal experience – the CAN SPAM Act requires companies who send "commercial" email messages to give consumers an opportunity to opt-out of receiving those messages in the future. The opt-out requirement does not apply to "transactional" messages, which generally facilitate an already agreed-upon transaction or update a customer about an ongoing transaction.

If a message contains more than one type of content, the "primary purpose" of the email is the deciding factor. That's a fuzzy concept and it depends on how a consumer views an email, but the FTC has stated that it considers two key factors in this analysis. A message will likely be deemed commercial if (1) the subject line would lead the recipient to think it's a commercial message, or (2) if the bulk of the transactional or relationship part of the message doesn't appear at the beginning.