Do individual sales emails and automated sales cadences require CAN-SPAM compliance?

Key findings

1. Commercial purpose is key: CAN-SPAM regulates emails with the primary purpose of commercial advertisement or promotion, not just those sent in bulk. This includes individual cold emails if they are promoting a product or service.
2. Unsubscribe mechanism: Commercial emails must include a clear and conspicuous way for recipients to opt out of future messages. This requirement applies even if the email appears personal or is part of a sales cadence.
3. Physical address requirement: All commercial emails must include a valid physical postal address of the sender.
4. Transparency: Commercial messages must clearly and conspicuously identify themselves as an advertisement or solicitation, unless prior affirmative consent has been obtained.

Key considerations

1. Understand the definition of 'commercial': Focus on whether the email's primary purpose is to promote a commercial product or service, rather than its appearance as a one-to-one message or part of an automated sales cadence.
2. Risk assessment: While manual one-off emails may have a lower risk of being flagged, they are not inherently exempt from CAN-SPAM. Implementing sales tools that automate outreach increases visibility and the potential for legal scrutiny if compliance is ignored. Your legal department should be involved in assessing this risk.
3. Transactional vs. Commercial: If a recipient responds positively to an unsolicited commercial email and subsequent communications remain focused on fulfilling that inquiry or completing a transaction, they may transition into relationship-based messages, which typically do not require CAN-SPAM compliance elements. Learn more about classifying emails as commercial or transactional.
4. Adherence to best practices: Beyond legal compliance, adhering to email marketing best practices builds trust and improves deliverability. The Federal Trade Commission (FTC) provides comprehensive guidance on CAN-SPAM compliance.

Key opinions

1. Volume is irrelevant: Many marketers mistakenly believe that small volumes of emails or personal emails are exempt from CAN-SPAM requirements. However, if the email's purpose is commercial, it must comply.
2. Unsubscribe links are crucial: Despite some sales tool recommendations, including a clear unsubscribe mechanism is a fundamental requirement for commercial emails under CAN-SPAM. The CAN-SPAM Act explicitly states this.
3. Automation doesn't change compliance: Automated sales cadences are not exempt from CAN-SPAM if their primary purpose is commercial promotion. The use of software to manage email campaigns, regardless of how personal they appear, often signifies a bulk or commercial intent.
4. Legal vs. deliverability risk: Even if an email technically complies with CAN-SPAM, aggressive tactics can lead to blocklisting and damage sender reputation. It's about more than just avoiding legal penalties; it's about avoiding spam folders and maintaining good email deliverability.

Key considerations

1. Challenge internal assumptions: Educate management on the true definition of commercial email under CAN-SPAM, emphasizing that manual or automated one-to-one sales emails are still subject to the law if their primary purpose is promotional.
2. Prioritize ethical sending: Beyond legal minimums, consider the company's brand and reputation. Sending unwanted commercial email can lead to negative perceptions and harm future outreach efforts.
3. Consult legal counsel: Always involve the legal department to get definitive advice on compliance issues specific to your organization's sending practices. They can assess the legal risks.
4. Monitor deliverability: Aggressive sales tactics, even if legally compliant, can still trigger spam filters and lead to IP or domain blocklisting. This directly impacts your ability to reach the inbox. It is essential to understand common mistakes in automated outreach to avoid deliverability issues.

Key opinions

1. Commercial intent governs: Experts agree that CAN-SPAM compliance is determined by whether the email's primary purpose is commercial, irrespective of whether it's sent individually, manually, or as part of an automated cadence.
2. Software implies bulk: If software is required to manage commercial email, it is generally considered bulk, and thus subject to CAN-SPAM regulations, even if the emails are drip-fed.
3. Unsolicited commercial emails are covered: A single unsolicited commercial email falls under CAN-SPAM. The law doesn't differentiate based on volume for initial contact.
4. Reputation matters beyond law: Even if legally compliant, sending unwanted emails can damage sender reputation, lead to blocklisting, and ultimately hinder deliverability. This is a business risk separate from legal penalties.
5. Post-reply exemption: Once a recipient replies positively to an unsolicited commercial email, subsequent correspondence that stays on topic becomes solicited and transactional in nature, thus typically exempt from CAN-SPAM's opt-out requirements.

Key considerations

1. Define company ethos: Consider the kind of company you aspire to be. Choosing to fully comply with (or exceed) ethical email practices can be a powerful and safer stance than pushing legal boundaries.
2. Proactive compliance: It's better to address compliance proactively than to react to issues like blocklisting or legal action.
3. Sustainable spamming: Some companies may opt for a more aggressive, yet sustainable, approach to cold outreach, but this should be a conscious, considered decision by leadership, acknowledging the inherent risks to sender reputation.
4. Understand the full scope: While CAN-SPAM is US-specific, similar regulations like GDPR and CASL apply internationally and often have stricter consent requirements, which further impacts how sales emails should be handled.

Key findings

1. Statutory Definition of Commercial Email: The CAN-SPAM Act defines a commercial electronic mail message as one whose primary purpose is the commercial advertisement or promotion of a commercial product or service. This broad definition includes individual sales emails and cadences if they serve this purpose.
2. Mandatory Opt-Out: The law requires all commercial emails to provide clear and conspicuous notice of the opportunity to decline to receive further commercial electronic mail messages from the sender.
3. Identification as Advertisement: Commercial emails must include clear and conspicuous identification that the message is an advertisement or solicitation, unless the recipient has given prior affirmative consent.
4. Physical Postal Address: A valid physical postal address of the sender is required in every commercial email.

Key considerations

1. No exemption for personalization: The Act's text does not provide exceptions for emails that appear to be personal or are sent in low volume. The primary purpose rule is consistently applied.
2. Consequences of non-compliance: Violations can result in substantial penalties, including fines for each individual non-compliant email. It's crucial for companies to prioritize legal counsel's advice on these matters.
3. Affirmative consent nuance: While affirmative consent can exempt the requirement to identify the message as an advertisement, it does not remove the need for an opt-out mechanism or physical address for commercial emails.
4. Consistency across channels: The principles of transparency and consumer choice embodied in CAN-SPAM align with broader digital communication regulations and best practices, encouraging a consistent approach to outreach across all sales and marketing channels.