FTC Sets Record Straight on Commercial Email


August 25, 2023
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FTC Sets Record Straight on Commercial Email

For years, many senders felt they walked a thin line between transactional email and commercial email with different campaigns, from welcome series to birthday emails to abandoned cart emails. I’ll often hear from customers: “We don’t need to include an unsubscribe link. This email is transactional.” 

But is it transactional? 

A recent court case clears up any confusion. As one company found out, there’s a clear line between transactional and commercial email. And crossing that line—by not including an unsubscribe link in commercial mail—could result in a hefty fine. Within the court documents, there are clear definitions provided to differentiate transactional and commercial email. 

What are transactional emails?

According to the Federal Trade Commission and the United States Department of Justice:

“Transactional or Relationship Message” means an Electronic Mail Message the primary purpose of which is:
  • To facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the Sender;
  • To provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;
  • To provide 
    • Notification concerning a change in the terms or features of; 
    • Notification of a change in the recipient’s standing or status with respect to; or 
    • At regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the Sender;
  • To provide information directly related to an employment relationship or benefit plan in which the recipient is currently involved, participating, or enrolled; or
  • To deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the Sender.”

What are commercial emails?

Other the other hand, the FTC and DOJ define commercial emails as the following:

“Commercial Electronic Mail Message” means any Electronic Mail Message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose).” 

What should I include in a commercial email?

In addition to defining commercial email as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service,” the CAN-SPAM Act explains that senders need to include a method to unsubscribe in commercial emails. That includes promoting content on commercial websites. 

In other words, “You always have the right to unsubscribe from marketing messages, and the FTC takes enforcing that right seriously,” as Director of the FTC’s Bureau of Consumer Protection Samuel Levine states succinctly of email recipients.

Audit your email program beyond compliance with Twilio SendGrid

Now that you know the law, it’s time to get compliant. Your first step is to audit your email program and confirm that you’ve correctly defined your streams between transactional and commercial. 

Then, you need to have one-click unsubscribe in all your commercial mail. If you do, great, but that’s just the bare minimum to be legally compliant.

Let Twilio SendGrid’s deliverability services take your email program well beyond simply legally compliant. Sign up for a free SendGrid account to get started, then upgrade to one of our deliverability service packages.The FTC clears up confusion about the difference between transactional and commercial email. Get the details to remain legally compliant.

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