In June 2009, a Capital One customer asked to stop receiving promotional emails from his credit card company. Capital One told him no. The company’s position was that the message, a balance transfer offer at a promotional interest rate, was not marketing but an “account management communication,” and therefore not subject to opt-out.1
That argument has a name under CAN-SPAM: the transactional or relationship message exemption. It also has a definition, and a balance transfer offer does not fit it.
CAN-SPAM distinguishes commercial messages from transactional or relationship messages based on primary purpose. A message is transactional if its predominant purpose is to facilitate a transaction the recipient already agreed to, or to provide information about an ongoing relationship. A message whose predominant purpose is to advertise or promote a product or service is commercial, regardless of what the sender labels it.2
A promotional interest rate offer is an advertisement. The fact that Capital One has an account relationship with the recipient does not transform the offer’s purpose. The FTC’s rulemaking record on this point is clear: senders cannot reclassify commercial content as transactional by adding language asserting that the message relates to the customer’s account. The content determines the classification, not the disclaimer at the bottom of the email.3
The deliverability consequence of getting this wrong is direct. A customer who wants to unsubscribe and cannot will complain to their ISP, to their mailbox provider, to the FTC. Complaints generate blocks. Blocks on a mailing that Capital One treats as transactional mean that those complaints attach to the same IP addresses that carry actual account notifications: statements, payment confirmations, fraud alerts. The customer who cannot opt out of the balance transfer offer may find that their payment confirmation also goes to the bulk folder.
The answer to avoiding complaints on commercial mail is not to reclassify it as transactional. It is to let people who do not want it to stop receiving it. Capital One’s customer made his position clear: he was not a receptive target and had no intention of responding to the offer. Sending it anyway did not make him more likely to act on it. It made him more likely to click “This is spam.”
This post does not constitute legal advice. Readers should consult competent legal counsel before taking action based on the analysis presented here.
Footnotes
- Bob Sullivan, Bank Says Its E-Mail Too Important to Be Spam, MSNBC Red Tape Chronicles (Jun. 9, 2009), https://www.nbcnews.com/business/consumer/bank-says-its-e-mail-too-important-be-spam-flna6c10406564. ↩︎
- 15 U.S.C. § 7702(17) (2003), https://www.law.cornell.edu/uscode/text/15/7702; 16 C.F.R. § 316.3 (2008), https://www.ecfr.gov/current/title-16/chapter-I/subchapter-C/part-316/section-316.3. ↩︎
- Definitions and Implementation Under the CAN-SPAM Act, 73 Fed. Reg. 29654, 29661–62 (May 21, 2008) (codified at 16 C.F.R. pt. 316), https://www.ftc.gov/sites/default/files/documents/federal_register_notices/definitions-and-implementation-under-can-spam-act-16-cfr-part-316/080521canspamact.pdf. ↩︎
About the Author
Mickey Chandler is a Consultant & Attorney with over 28 years of experience in Email Deliverability & Privacy Law. He has a strong background in email authentication infrastructure (SPF, DKIM, DMARC), ISP and mailbox provider relations, anti-spam policy and compliance, CAN-SPAM and state anti-spam law gained through overseeing the Abuse & Compliance team at Salesforce Marketing Cloud, originating the ISP relations role at Informz (now part of Higher Logic), and working in the fight against spam since 1997. He holds a B.A. in Government, a B.S. in Computer Information Systems, and a J.D. from the University of Houston Law Center. He is a certified CIPP/US professional and a certified CIPM professional.
