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Where the promotional part of a newsletter sits in the body can decide whether the whole issue counts as commercial email. Under 16 CFR 316.3(a)(2), a message carrying both commercial content and transactional or relationship content is deemed commercial in either of two cases.¹ The first is where a recipient reasonably interpreting the subject line would likely conclude that the message contains the commercial advertisement or promotion of a commercial product or service.¹ The second is where the transactional or relationship content "does not appear, in whole or in substantial part, at the beginning of the body of the message."¹ The regulation joins the two with "or."¹

Nothing in that second test turns on what the sentences say. It asks where the material sits in the message. That is a property of the assembled file rather than of the prose, and it is decided at a different point in the work.

Why a subscribed newsletter sits inside that paragraph

The paragraph applies only where the newsletter's own content is transactional or relationship content, and the Commission addressed that question when it adopted these criteria. Its statement of basis and purpose was published at 70 FR 3110 on January 19, 2005, and the discussion of periodicals runs from page 3117. "When a recipient subscribes to a periodical delivered via e-mail, then transmission of that periodical to that recipient falls within one of the" transactional or relationship message categories.² The clause the statement relies on is 15 U.S.C. 7702(17)(A)(v).² That clause covers the delivery of goods or services, including product updates or upgrades, that the recipient is entitled to receive.³ The entitlement arises under the terms of a transaction the recipient has previously agreed to enter into with the sender.³

The statement then addresses the mix a newsletter usually carries. "This is true regardless of whether the periodical consists exclusively of informational content or combines informational and commercial content."² A footnote attached to that passage sets a limit on it. The requested content may be "overwhelmed by commercial content that clearly exceeds what the recipient might reasonably have expected."² Where that happens, the footnote says, the sender cannot persuasively argue that the message delivers content the recipient is entitled to receive.² Determining that, the same footnote says, requires consideration of what the recipient understands they are entitled to receive.²

Proportion is therefore inside the analysis from the beginning. The footnote measures it against what a reader might reasonably have expected rather than against a fixed percentage.² What a given list of readers was told they would receive is the sender's own record.

What the Commission says about a newsletter nobody subscribed to

The statement takes the unsubscribed case separately. "When a sender delivers an unsolicited newsletter or other periodical via e-mail, and there is no subscription, the situation is materially different for purposes of CAN-SPAM."² The comparison in that sentence is with content delivered with the consent of the recipient.² In that scenario, it continues, "the content likely would not be 'transactional or relationship' within the meaning of section 7702(17)(A)(v)."²

The Commission then routes that message to a different paragraph of the rule. Where a message combines commercial content with content that is neither commercial nor transactional or relationship content, the criteria at 16 CFR 316.3(a)(3) apply.² Under that paragraph a message is deemed commercial where the subject line test is met.¹ It is deemed commercial as well where "a recipient reasonably interpreting the body of the message would likely conclude that the primary purpose" is commercial advertisement or promotion.¹ The regulation names a commercial product or service as the object of that promotion.¹

The factors the rule names, and the ones it does not

For that second reading, the regulation names what bears on it and marks the list as open rather than closed. The lead-in reads "Factors illustrative of those relevant to this interpretation include," and three follow.¹ The first is the placement of commercial content, in whole or in substantial part, at the beginning of the body of the message.¹ The second is the proportion of the message dedicated to that content, and the third is "how color, graphics, type size, and style are used to highlight commercial content."¹

A sponsor block moved above the week's reporting changes the first of those three. Setting the same block in a larger face changes the third. Both changes are made after the copy is written, and neither alters a word of it.

The list of categories both paragraphs work from is printed twice. The rule prints it at 16 CFR 316.3(c), where it defines transactional or relationship content.¹ The statute prints a parallel list at 15 U.S.C. 7702(17)(A), where it defines a transactional or relationship message.³

The from line can settle who counts as the sender

Where an issue promotes somebody else's product, the rule addresses the arrangement directly. Under 16 CFR 316.2(m), when more than one person's products, services, or Internet website are advertised or promoted in a single message, each such person who is within the Act's definition is deemed a sender.⁴ The regulation then makes an exception, under which only one person is deemed the sender of that message.⁴ Three conditions attach. That person must be within the Act's definition of sender, and must be "identified in the 'from' line as the sole sender of the message."⁴ That person must also be in compliance with a named list of statutory and regulatory provisions.⁴

The designation matters to the rest of the document because the statute asks for the address of the sender, and not of anybody else. Under 15 U.S.C. 7704(a)(5)(A), a commercial message must provide "a valid physical postal address of the sender."⁵ Which name belongs in the from line and which address belongs below it are therefore the same question asked twice.

What the statute asks for, and where it says nothing

Three things must be provided in a commercial message under 15 U.S.C. 7704(a)(5)(A). The first is "clear and conspicuous identification that the message is an advertisement or solicitation."⁵ The second is clear and conspicuous notice of the opportunity to decline further commercial messages, and the third is the postal address quoted above.⁵ The first of the three carries an exception at 7704(a)(5)(B). That subparagraph provides that the identification requirement "does not apply to the transmission of a commercial electronic mail message if the recipient has given prior affirmative consent."⁵ The consent is to receipt of the message.⁵

Two of the three items carry the phrase clear and conspicuous. The address does not, and the statute specifies no place in the message for it.⁵ The Commission's guide describes what may serve. A current street address will do, and so will "a post office box you've registered with the U.S. Postal Service."⁶ So will a private mailbox registered with a commercial mail receiving agency established under Postal Service regulations.⁶

Two further requirements sit in other paragraphs of the same section. Under 7704(a)(3)(A), the opt-out mechanism must be "clearly and conspicuously displayed" and must remain capable of receiving messages for no less than 30 days after the original message goes out.⁵ Under 7704(a)(4)(A), once a request arrives, the sender may not initiate a further commercial message within the scope of that request more than 10 business days later.⁵

A rule provision governs what an opt-out may cost the reader. Neither a sender nor any person acting on behalf of a sender may require a fee, or information other than the recipient's electronic mail address and opt-out preferences.⁷ Nor may either require any step except sending a reply message or visiting a single Internet web page, in order to use the opt-out mechanism or have a request honored.⁷ Those limits are what an opt-out sentence has to be written against.

An affiliate line has a test of its own

A recommendation that earns the writer money raises rules that are not the email rules. Under 16 CFR 255.5(a), two conditions bring a disclosure duty into play. The connection between the endorser and the seller of the advertised product must be one that might materially affect the weight or credibility of the endorsement.⁸ It must also be a connection the audience does not reasonably expect.⁸ Where both hold, "such connection must be disclosed clearly and conspicuously."⁸

The paragraph adds that a disclosure "does not require the complete details of the connection, but it must clearly communicate the nature of the connection sufficiently for consumers to evaluate its significance."⁸ What clear and conspicuous means in a scrolling document is addressed in the Commission's guidance on digital advertising, published in March 2013. A disclosure "is more likely to be effective if consumers view the disclosure and the claim that raises the need for disclosure" together on the same screen.⁹ "Requiring consumers to scroll in order to view a disclosure may be problematic," the guidance states.⁹ Its reason is that consumers who do not scroll enough, and in the right direction, may miss important qualifying information and be misled.⁹

What we do not classify

Whether a given issue is a commercial electronic mail message is a legal question, and it is not one we answer. Every piece of work sent to us is treated confidentially. We do not audit a subscriber list, configure a sending platform, or advise on compliance, and the sender decides which of its own messages fall inside which category.

Our work is on the text and its order. We read the subject line against what the issue actually contains. We check whether the opt-out sentence states plainly what a reader has to do to use it, and whether it says the same thing in every issue. We check that an address block carried forward for two years still matches the address the sender gives elsewhere in the document. Where an issue carries a recommendation and a disclosure, we record how far apart they sit and whether anything between them contradicts the disclosure.

Where the criteria came from, and what has moved since

The primary purpose criteria were adopted at 70 FR 3110 on January 19, 2005.² Part 316 carries a source note of 73 FR 29677, May 21, 2008, and that rulemaking was substantive rather than a reprint.⁴ It is the proceeding that added the sole sender exception in 316.2(m), giving marketers, in the Commission's words, "the flexibility to structure their messages" so that one of them carries the obligations.¹⁰ The Commission opened a regulatory review in 2017 and received 100 comments, of which it considered ninety-two, the rest being blank or not germane to the review.¹¹ On April 4, 2019 it announced that it "has determined to retain the Rule in its present form."¹¹

The criteria in 316.3 date from 2005, and the sender exception from 2008. A footer written to them does not fall out of date because they changed. It falls out of date because the sender's address changed, or because a sponsor slot was moved higher in the issue. It falls out of date because a line like "you are receiving this because you signed up" was written when the list had one purpose and left in place after that list acquired another.