When is transactional mail not transactional anymore?

2 December 2009

An interesting question came across my desk this morning. Here’s the request from someone we’ll call “Joe”:

I need some help understanding CAN-SPAM requirements. I represent a membership organization. From time to time, we send marketing message to our members and, of course, some of the unsubscribe from those messages. Now we are getting to the time of the year when we start working on membership renewals. Can I send email to our members (even those who have unsubscribed) about renewing their memberships?

This is getting into some grey areas concerning how to do things. First, let’s start with the general rules that apply in just about any situation:

  1. Despite what CAN-SPAM allows, doing things on a strict opt-in basis is the way to go. It’s pretty well mandated by all reputable ESPs these days anyway.
  2. When you get an unsubscribe request, it applies across your organization. If you use multiple ESPs, then you need to make arrangements to apply global unsubscription requests across ESPs.
  3. When you get an unsubscribe request, it has to be honored within 10 business days.
  4. CAN-SPAM does not apply to transactional messages. Mickey Chandler, ​Prior Business Relationships Are Irrelevant​, Spamtacular (2008), http://www.spamtacular.com/2008/10/07/prior-business-relationships-are-irrelevant/ (last visited Dec 2, 2009).

Now, let me explain where things get murky. Back in 2008, the FTC filed a document entitled “Definitions and Implementation Under the CAN-SPAM Act” with its interpretation of CAN-SPAM’s requirements. In that guidance, they were asked about the same question and here’s what they had to say:

Under the existing definition of ‘transactional or relationship message’ the Commission believes that where a recipient is no longer a member of an organization, it is unlikely that messages from the organization fall within any of the categories of ‘transactional or relationship messages.’ For example, a message that advertises or promotes the sale of a new or renewed membership would be a ‘commercial electronic mail message’….

The Commission declines to modify the definition of ‘transactional or relationship message’ to include such emails.

Definitions and Implementation Under the CAN-SPAM Act, , ​Federal Trade Commission​ (2008), http://www.ftc.gov/sites/default/files/documents/federal_register_notices/definitions-and-implementation-under-can-spam-act-16-cfr-part-316/080521canspamact.pdf (last visited Dec 2, 2009). (p. 29667)
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So, now there is some clarification…and some confusion, at least on my part. First, notice that they are limiting the statement to people who are “no longer a member” instead of people who currently are. This comports with the initial statement of the problem given on page 58:

In the NPRM,1 the Commission stated that it believes that email messages from an association or membership entity to its members are likely “transactional or relationship messages” under section 7702(17)(A)(v).

I think that the concepts are clear enough, but does the nature of an email change given an arbitrary (albeit an important) date? In other words, is it possible for a message to be transactional on one day, and the exact same message be commercial the next?

The answer seems to be “Yes.” Page 58 of the NPRM seems to indicate that messages (such as membership renewal notices) would be transactional when sent to current members. But pages 59 and 60 seem to go on to say that the very day that person is no longer a member then the exact same content is now commercial in nature and subject to all of the strictures of CAN-SPAM, including not sending mail to people who had unsubscribed from commercial messages from the organization while they were still members.

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Now, I’m generally pretty confident in my knowledge of CAN-SPAM, but this time I didn’t want to have people potentially rely on my gut instinct and a simple reading of what could be a rather complex matter. So, I turned to the FTC. I spoke with W. D. Kelly of the FTC’s Public Reference Desk on the issue.

First, some caveats. I don’t know if Mr. Kelly is an attorney, but even if he is, you shouldn’t consider even what I’m about to say to be completely authoritative. In our discussion, I didn’t give him all of the facts (because of the narrowness of the question that I was asking). For instance, I didn’t mention that Joe wants to mail his unsubscribe list about their membership coming up for renewal. If the message is transactional, then it doesn’t matter if they unsubscribed from marketing messages. If the message is commercial, then it doesn’t matter what it is, Joe has to honor the unsubscription request.

So, here’s the question that I asked Mr. Kelly: “In the case of a membership association, does the nature of a membership renewal message transform from transactional to commercial solely on the basis whether the membership is current?” We actually ended up going through several iterations of the question as we struggled to understand each other and ended up with something along the lines of “Can a membership renewal notice be transactional one day and commercial the next, or is it really a commercial message all along?”

His answer agreed with mine: A notice of renewal is transactional when sent before membership expires. When sent afterward, it is now a commercial message that must comply with all of the requirements of the law.

So, there you have it, Joe. You can send your membership renewal notice to all of your membership, just as long as you do so before their membership expires. If you wait until after it has expired, then you must honor the prior unsubscription request and send the renewal offer using some means other than email.

Why? Because your transactional mail ceases to be transactional upon the expiration of that membership.

I hope that helped.

  1. Notice of Proposed Rulemaking ↩︎
Mickey Chandler
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