Summary
The distinction between transactional and commercial email is critical for compliance and deliverability, yet it's often a source of confusion. Transactional emails are typically triggered by user actions and provide essential information, such as order confirmations or password resets. Commercial emails, on the other hand, are sent to promote products, services, or goodwill, and are subject to stricter regulations like the CAN-SPAM Act in the United States and similar laws globally. A recent FTC enforcement action against Experian highlighted that simply being related to an account does not automatically make an email transactional if its primary purpose is promotional. This case underscores the importance of clearly separating these email types, not just for legal compliance but also for maintaining a healthy sender reputation and avoiding issues like email blocklists.
Key findings
- Primary purpose rule: An email's classification hinges on its main objective. If the primary purpose is commercial, it's a marketing email, even if it contains some transactional content.
- Blended content risks: Including promotional elements (like coupons, calls to action, or even certain logos) in a transactional email can "transmute" it into a commercial email, subjecting it to opt-out requirements.
- Legal ramifications: Misclassifying emails can lead to significant penalties, as demonstrated by the FTC's enforcement actions against companies attempting to circumvent unsubscribe requirements.
- User expectation: Recipients expect transactional emails to be purely informational. Introducing promotional content can violate this expectation, leading to complaints and negative sender reputation impacts.
Key considerations
- Content review: Rigorously review all email content, especially those intended to be transactional, to ensure no promotional material is inadvertently included. Consider the implications of including promotional content in transactional emails.
- Separate streams: For optimal deliverability and compliance, it is generally best practice to separate transactional and marketing email sending streams entirely.
- Legal interpretation: Familiarize yourself with relevant email marketing laws like the CAN-SPAM Act, particularly its compliance guide for businesses, to understand how your emails are legally classified.
- Clear communication: Ensure that if an email serves a transactional purpose (e.g., account updates), it remains focused on that purpose without trying to subtly upsell or cross-promote. Understanding how account update emails are classified is key.
What email marketers say
Email marketers often face a dilemma when trying to maximize engagement and revenue without crossing the line into non-compliant email practices. The temptation to include small promotional elements within seemingly transactional emails, such as order confirmations or account updates, is strong. However, this approach carries significant risks, not just legally but also in terms of deliverability and recipient trust. Marketers frequently debate where the line is drawn and how subtle inclusions can alter an email's legal classification.
Key opinions
- Don't mix: Many marketers advocate for a strict separation, believing that any promotional content, even a small link or banner, can turn a transactional email into a commercial one requiring an unsubscribe option.
- User experience: There's a strong consensus that forcing users to accept marketing content to receive essential transactional updates (like score reports) is a manipulative and harmful practice.
- Tainted transactional: The concept of a "tainted transactional" email is widely recognized, where an otherwise transactional message becomes commercial due to the inclusion of promotional material.
- Clarity over cleverness: Marketers should prioritize clear communication and legal compliance over attempting to subtly weave marketing into essential notifications, as this often backfires with user complaints and regulatory issues.
Key considerations
- Compliance first: Always prioritize CAN-SPAM compliance, especially when crafting emails that border on both transactional and commercial. This includes understanding when automated sales emails require an unsubscribe link.
- Recipient expectation: Consider what the recipient expects from the email. If they anticipate a purely informative update (e.g., an order confirmation), any promotional content can be perceived negatively, potentially leading to complaints and transactional emails going to spam.
- Avoid bundling: Do not tie the receipt of transactional information to an agreement to receive marketing emails. This practice is often viewed as predatory and can lead to legal action.
- Learn from others: Stay informed about regulatory actions and industry discussions (such as those found on Mailjet's deliverability blog) to understand evolving interpretations of email classifications.
Marketer view
An email marketer from Email Geeks states that Experian’s practice of bundling score updates with promotional mail was particularly irksome, especially since it meant you couldn't get the essential update without opting into the marketing.
Marketer view
A forum user on StackExchange highlights the risk of blending transactional updates with marketing upsells, noting that recipients often feel misled and are more likely to mark such emails as spam, negatively impacting sender reputation.
What the experts say
Experts in email deliverability and legal compliance consistently emphasize the nuanced nature of distinguishing between transactional and commercial emails. Their insights often delve deeper than surface-level definitions, considering factors like sender intent, recipient expectation, and the overall impression of the message. The consensus among experts is that any content that promotes a commercial product or service, even subtly, can shift an email's classification and its associated legal requirements.
Key opinions
- Purpose matters most: The core of classification lies in the email's primary purpose. If it's designed to market, it's commercial, regardless of any incidental transactional data.
- Subtle changes: Even seemingly minor additions, like a company logo or a few promotional words, can legally transform a transactional email into a commercial one, especially in stricter regulatory environments like the EU.
- Regulatory scrutiny: Regulators are actively scrutinizing instances where companies try to evade unsubscribe obligations by mislabeling marketing emails as transactional.
- Honest practice: Ethical email sending dictates that transactional emails should contain only information directly relevant to the triggered transaction.
Key considerations
- Review legal definitions: Consult detailed analyses of legal definitions for transactional and commercial email, such as those provided by ISIPP's blog on the Experian case.
- Avoid promotional content in transactional emails: Be extremely cautious about adding any call-to-action (CTA) or promotional messaging, even if it seems small or peripheral.
- Understand transmuting factors: Educate yourself on factors that can "transmute" a transactional email into a marketing email, including text and images, as discussed in deliverability expert resources.
- Separate infrastructure: Many experts recommend using separate subdomains and IPs for transactional and marketing emails to protect the deliverability of critical transactional messages.
Expert view
A deliverability expert from Email Geeks notes that they will use the FTC ruling to address questions about whether emails are transactional and thus don't require an opt-out option.
Expert view
Deliverability expert from Spamresource observes that the primary purpose rule is crucial. If an email's main goal is to promote, it's commercial, regardless of incidental transactional content, and this is a common pitfall for senders.
What the documentation says
Official documentation from regulatory bodies, particularly the Federal Trade Commission (FTC) concerning the CAN-SPAM Act, provides the definitive legal framework for distinguishing between transactional and commercial emails. These documents clarify that the primary purpose of an email is the key determinant. If an email's main goal is promotional, it falls under commercial regulations, even if it contains some information related to a transaction or ongoing relationship. This guidance is crucial for senders to ensure full legal compliance and avoid significant fines.
Key findings
- Legal definitions: The CAN-SPAM Act provides specific definitions for "commercial electronic mail message" and "transactional or relationship messages," which guide classification.
- Primary purpose test: If an email includes both commercial and transactional content, its primary purpose determines its legal status. This means assessing whether the dominant reason for the email is promotional or informational.
- Mandatory unsubscribe: Commercial emails, by law, must include a clear and conspicuous mechanism for recipients to opt out of future messages.
- Strict enforcement: Regulatory bodies like the FTC actively pursue and penalize companies that attempt to bypass these requirements by mislabeling commercial content as transactional.
Key considerations
- Understand the criteria: Thoroughly review the FTC's CAN-SPAM Act Compliance Guide to ensure your email content aligns with legal definitions.
- Content proportionality: Ensure that any transactional or relationship-oriented content significantly outweighs any promotional content if you intend for the email to be classified as transactional.
- Unsubscribe options: When in doubt, provide an unsubscribe link. It is safer to offer an opt-out for an email that might be deemed commercial than to omit it from one that is.
- Regular audits: Periodically audit your email sends to ensure they align with current legal interpretations and best practices, especially considering cases like the Experian settlement details.
Technical article
The Federal Trade Commission's guidance on CAN-SPAM clarifies that if an email contains both commercial and transactional content, its primary purpose determines its classification. If the primary purpose is commercial, it must comply with all CAN-SPAM rules, including offering an opt-out.
Technical article
The CAN-SPAM Act documentation stipulates that a transactional or relationship message's primary purpose is commercial if it advertises or promotes a commercial product or service and a recipient's transaction or relationship with the sender does not appear to be the dominant reason for the message.
Related resources
13 resources
Related pages
What are the legal and deliverability implications of including promotional content in transactional emails?
How should account update emails be classified as commercial or transactional if users can opt out?
When are automated sales emails considered marketing under CAN-SPAM and require an unsubscribe link?
Why are my transactional emails going to spam?
Should I separate transactional and marketing emails?
A simple guide to DMARC, SPF, and DKIM
Why Your Emails Are Going to Spam in 2024 and How to Fix It
An in-depth guide to email blocklists
