When are automated sales emails considered marketing under CAN-SPAM and require an unsubscribe link?
Matthew Whittaker
Co-founder & CTO, Suped
Published 3 May 2025
Updated 19 Aug 2025
7 min read
Automated sales emails are a powerful tool, often designed to mimic one-to-one communication. The goal is to build rapport and drive conversions. However, a common question arises regarding their legal standing: when do these emails cross the line from a personal correspondence to a commercial message, triggering the need for an unsubscribe link under the CAN-SPAM Act?
It is a critical distinction, especially for sales teams leveraging automation platforms. While these platforms might facilitate personalized outreach, their underlying purpose can still be commercial, making them subject to specific regulations. Understanding this distinction is vital for maintaining compliance and avoiding costly penalties.
Navigating email compliance is not just about avoiding legal repercussions, but also about maintaining a positive sender reputation and ensuring your messages reach the inbox. Misclassifying emails can lead to poor deliverability, with messages ending up in spam folders or even on blocklists (blacklists).
Understanding the CAN-SPAM act's scope
The CAN-SPAM Act, contrary to popular belief, does not solely apply to bulk email. It covers "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service," as defined by the Federal Trade Commission (FTC). This means that even a single email, if its main intent is commercial, must adhere to the law.
This broad definition includes emails promoting content on commercial websites and makes no exception for business-to-business (B2B) communications. For instance, an email to a former client announcing a new service line, even if sent individually, falls under this commercial umbrella and must comply.
Therefore, the sheer volume of emails sent is less relevant than their underlying intent. If your automated sales cadence aims to generate revenue by promoting a product or service, it is generally considered a commercial email under CAN-SPAM, regardless of how "personal" it appears or how many recipients it targets.
The primary purpose rule: commercial vs. transactional
The core of CAN-SPAM compliance lies in determining the "primary purpose" of an email. Emails are typically categorized as either "commercial" or "transactional/relationship." Commercial emails primarily advertise or promote a product or service, while transactional emails facilitate an already agreed-upon commercial transaction or provide essential updates related to an ongoing relationship.
Automated sales emails often walk a fine line. If a sequence of emails is designed to convince a prospect to make a purchase or sign up for a demo, their primary purpose is commercial. Even if some emails provide helpful information, if the ultimate goal is sales conversion, they lean heavily towards being commercial. You can learn more about this distinction in our article, When does transactional email become commercial email?.
For instance, a welcome email after a purchase, an order confirmation, or a password reset link are clear examples of transactional emails. They do not require an unsubscribe link because their main function is to convey information necessary for the recipient's interaction with your service or product. However, if these transactional emails also contain significant promotional content, their nature can change.
Determining email purpose
The FTC's CAN-SPAM compliance guide states that the "primary purpose" of an email determines its classification. This isn't always straightforward.
Commercial email: If content includes a call to action to buy, promote, or advertise a product or service.
Transactional email: If content's sole purpose is to facilitate a transaction or update an existing commercial relationship.
Unsubscribe requirements and compliance
For any email classified as commercial, the CAN-SPAM Act mandates a clear and conspicuous mechanism for recipients to opt out of future emails. This means including an unsubscribe link. It is not optional, even if your sales team believes it might detract from their outreach efforts.
The law requires that opt-out requests be honored promptly, within 10 business days. Best practice, however, is to process these requests much faster, ideally immediately. Delays can lead to recipient frustration, increased spam complaints, and potential blocklist (blacklist) issues. We discuss best practices for handling unsubscribes in Is a two-click email unsubscribe process compliant with CAN-SPAM?.
Furthermore, the unsubscribe mechanism must be easy to use. Recipients should not have to log in or take multiple steps to opt out. A single, clear link (sometimes referred to as one-click unsubscribe) in the email footer is the industry standard and preferred by mailbox providers.
Risk factors
Automated sales sequences without an unsubscribe link can be seen as non-compliant under CAN-SPAM if their primary purpose is commercial.
Legal exposure: Potential fines up to $51,744 per non-compliant email.
Recipient frustration: Leads to higher spam complaints, even if recipients do not actively click "unsubscribe."
Poor sender reputation: Mailbox providers interpret high complaint rates as a sign of unwanted mail, harming your deliverability.
Compliance & deliverability benefits
Including an unsubscribe link in automated sales emails, when their primary purpose is commercial, ensures CAN-SPAM compliance and improves overall email health.
Reduced legal risk: Adheres to the core opt-out requirement of CAN-SPAM.
Improved user experience: Gives recipients control, reducing spam complaints.
Better deliverability: Lower complaint rates signal to ISPs that your emails are wanted, improving inbox placement.
While CAN-SPAM sets the legal floor, mailbox providers (ISPs) often have stricter standards for email deliverability. Their algorithms prioritize user experience, and a high complaint rate (which can arise from emails without clear unsubscribe options) will negatively impact your sender reputation. Even if legally compliant, your emails might still land in the spam folder.
A domain or IP address that consistently generates complaints can end up on various email blocklists (or blacklists). Being listed on a major blacklist can severely disrupt your email program, preventing your messages from reaching a wide audience. Understanding what happens when your domain is on an email blacklist is crucial for any business sending email.
Proactively including an unsubscribe link, even if a sales email isn't strictly considered commercial by some interpretations, fosters trust and improves your deliverability. When recipients can easily opt out, they are less likely to mark your emails as spam, which helps maintain a healthy sending reputation. This proactive approach supports overall email deliverability.
Moreover, recent updates from major mailbox providers, such as Google and Yahoo, emphasize strict adherence to one-click unsubscribe and low spam complaint rates. Non-compliance with these guidelines can lead to significant deliverability issues, even if your emails technically meet the minimum CAN-SPAM requirements. Our article, How do Yahoogle (Yahoo and Google) distinguish between bulk marketing and transactional emails, provides more details.
Views from the trenches
Best practices
Always include an unsubscribe link in any email that could be interpreted as commercial, even if it feels one-to-one.
Ensure your unsubscribe process is truly one-click and immediately processes opt-out requests, ideally within seconds, not days.
Integrate unsubscribe lists across all sending platforms to prevent re-contacting opted-out individuals, regardless of email type.
Common pitfalls
Assuming sales emails are exempt from CAN-SPAM because they are personalized or one-to-one.
Not cross-referencing unsubscribe lists between marketing automation platforms and individual sales outreach tools.
Relying solely on CAN-SPAM's minimum requirements without considering stricter ISP guidelines and best practices.
Expert tips
Consult legal counsel for definitive advice tailored to your specific email practices and jurisdictions.
Prioritize user experience by making it easy to opt out, even if not strictly required by law for a particular email.
Recognize that mailbox providers impose higher standards than legal acts, impacting deliverability based on user engagement and complaints.
Expert view
Expert from Email Geeks says that all commercial emails must accept opt-outs, not be deceptive, and include a postal address. There is some flexibility in how opt-outs are accepted, but not much.
2019-09-06 - Email Geeks
Marketer view
Marketer from Email Geeks says that if a customer opts out via a one-click unsubscribe on a marketing platform, that opt-out should cover all commercial communication from the company, including sales emails.
2019-09-06 - Email Geeks
Final thoughts on compliance
Determining when an automated sales email is considered marketing under CAN-SPAM boils down to its primary purpose. If it's promoting or advertising a commercial product or service, it requires an unsubscribe link, regardless of its personalized appearance or the volume of sends. This applies to individual sales emails and automated sales cadences alike. Ignoring this can lead to legal penalties and significant deliverability issues.
For complete legal certainty, especially with evolving email regulations and varying international laws, always consult with your legal team. However, from a deliverability and sender reputation standpoint, it is a sound strategy to always include an easy-to-use unsubscribe option in any commercial outreach, ensuring recipients have clear control over their inbox preferences.
Google and 
Yahoo, emphasize strict adherence to one-click unsubscribe and low spam complaint rates. Non-compliance with these guidelines can lead to significant deliverability issues, even if your emails technically meet the minimum CAN-SPAM requirements. Our article, How do Yahoogle (Yahoo and Google) distinguish between bulk marketing and transactional emails, provides more details.
