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When are automated sales emails considered marketing under CAN-SPAM and require an unsubscribe link?

Summary

The distinction between automated sales emails and marketing emails under the CAN-SPAM Act is a common point of confusion for businesses. While automated sales outreach may feel like personal one-to-one communication, its primary purpose often aligns with commercial advertisement or promotion. This categorization is crucial because it dictates whether an unsubscribe mechanism is legally required.

What email marketers say

Email marketers often navigate a complex landscape when categorizing automated sales emails, especially concerning CAN-SPAM requirements. Many struggle with sales teams pushing against unsubscribe links, viewing them as obstacles to conversions, despite the legal and deliverability risks involved. The consensus typically leans towards caution, emphasizing that most automated outreach, even if personalized, serves a commercial objective.

Marketer view

Email marketer from Email Geeks notes that their sales team is getting onboarded with SalesLoft, which helps send automated emails that look personal. They are seeking clarity on when these emails are considered marketing under CAN-SPAM and thus require an unsubscribe link. They specifically note that SalesLoft doesn't require an opt-out option, putting the decision on the sender.

06 Sep 2019 - Email Geeks

Marketer view

Email marketer from Email Geeks also asks if it's safe to assume that once someone responds to an automated email, the sales person can then manually correspond without including an unsubscribe link. They are trying to understand the nuances of when the commercial nature shifts or changes.

06 Sep 2019 - Email Geeks

What the experts say

Deliverability experts consistently advise that the classification of automated sales emails under CAN-SPAM hinges on their primary purpose. If the email is promotional, regardless of how personalized it appears or whether it's part of a 'sales' sequence, it falls under the commercial umbrella and requires an unsubscribe link. Experts also highlight that mailbox providers often enforce stricter anti-spam standards than the baseline legal requirements.

Expert view

Email expert from Email Geeks advises that if you're sending commercial email, you should consult with legal counsel, as the law explicitly covers "commercial" messages, not just "bulk" ones. This distinction is fundamental to compliance.

06 Sep 2019 - Email Geeks

Expert view

Email expert from Email Geeks recommends assuming that anyone who has opted out is "gone" from your mailing list for all commercial communications, at least until legal advice dictates otherwise. They highlight that the default opt-out in CAN-SPAM applies to the entire company.

06 Sep 2019 - Email Geeks

What the documentation says

Official documentation, particularly from the Federal Trade Commission (FTC), provides definitive guidance on the CAN-SPAM Act. It clearly outlines what constitutes a "commercial message" and the non-negotiable requirements for senders, regardless of email volume or perceived one-to-one nature. The emphasis is consistently on the message's primary purpose and the mandatory inclusion of a clear unsubscribe mechanism.

Technical article

Documentation from the Federal Trade Commission (FTC) clarifies that despite its name, the CAN-SPAM Act doesn't apply just to bulk email; it covers all commercial messages, which are defined by their primary purpose. This means any electronic mail primarily promoting a commercial product or service falls under the law.

06 Sep 2019 - ftc.gov

Technical article

Documentation from the Federal Trade Commission (FTC) further explains that the CAN-SPAM Act makes no exception for business-to-business (B2B) email. Therefore, even messages to former customers announcing a new product line must comply with the law's requirements.

06 Sep 2019 - ftc.gov

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