Understanding where transactional email ends and marketing begins can determine whether your messages comply with anti-spam regulations. Here in the U.S., the CAN-SPAM Act uses a “primary purpose” test to make this distinction,1 but the practical application often creates gray areas that challenge email marketers. The key isn’t whether your message contains some commercial content, but whether promoting your business is the primary reason you’re sending it.
The Primary Purpose Test
CAN-SPAM evaluates whether a message’s primary purpose is transactional or commercial based on the message content and how a reasonable recipient would interpret it. A message remains transactional if its primary purpose is to facilitate, complete, or confirm a previously agreed-upon transaction or provide warranty, recall, safety, or security information about a purchased product or service.2
This creates practical challenges for businesses operating subscription models, freemium services, or ongoing customer relationships where the line between necessary communication and business promotion becomes blurred.
The Freemium Trial Challenge
Duolingo has a premium plan that offers a 7-day free trial period before requiring payment. They say that they will send you a message saying that “your trial expires in 2 days.” This appears straightforwardly transactional because you’re informing customers about the status of their existing service relationship.
However, the content determines the classification. If their message states “Your 7-day trial expires on [date]. To continue, do nothing and we will bill you when the trial ends. To end your trial, please go to [link]” then Duolingo is providing necessary account information. The primary purpose is to inform the customer about their trial status.
But what happens if Duolingo starts adding elements designed to encourage conversion? Including customer testimonials, feature comparisons, or limited-time upgrade discounts shifts the message’s primary purpose from informing about trial status to promoting paid conversion. The same notification becomes commercial marketing when its primary purpose changes from account management to sales.
Where Promotional Content Crosses the Line
The important test is asking “what will the recipient think is the reason the message was sent?” If someone requests a password reset and your email clearly provides that reset link, they understand why you sent the message. On the other hand, if a receipt recipient sees a “receipt” that contains more upsells than line items, they may wonder what the real reason for the message was.
This principle applies to order confirmations that promote related products, shipping notifications that include marketing surveys, or account statements that advertise new services. The transactional content doesn’t protect these messages if the primary purpose changes from transactional to promotional.
Practical Guidelines for Classification
To determine your message’s primary purpose, think about what the recipient will reasonably think. Customers who complete purchases expect order confirmations. Trial users expect trial status updates. Subscribers expect billing notifications.
Messages that exceed these reasonable expectations by promoting additional purchases, upgrades, or unrelated services likely cross into commercial territory. The test isn’t whether you include any promotional content, but whether promoting your business becomes the message’s primary purpose.
For freemium services, focus trial expiration notices on account status and next steps for continued service. Save feature promotions, customer success stories, and upgrade incentives for separate marketing campaigns sent to consenting recipients.
How to Classify
Apply a simple test to your message content: Remove all promotional elements and evaluate whether the remaining content justifies sending the message. If yes, your message likely maintains transactional status. If the remaining content becomes insufficient to warrant communication, the promotional content was probably the primary purpose.
This framework helps evaluate borderline cases like membership renewal notices. Sending renewal notices to current members before expiration typically qualifies as transactional because you’re managing an existing relationship. However, sending the same content to former members after expiration likely becomes commercial because you’re soliciting new business.3
Compliance Risk Management
When uncertain about message classification, apply commercial email requirements. This conservative approach ensures compliance even if your primary purpose evaluation proves incorrect. The penalties for misclassifying commercial messages as transactional typically exceed the costs of additional compliance measures.
Remember that different jurisdictions may apply different standards. International senders should typically consider the strictest applicable regulations when designing their email programs.
This blog post does not constitute legal advice. Organizations should consult with qualified legal counsel regarding their specific email marketing compliance requirements.
Footnotes
- 15 U.S. Code § 7702(2)(A), (17)(A). ↩︎
- 15 U.S. Code § 7702(17)(A). ↩︎
- Mickey Chandler, When Is Transactional Mail Not Transactional Anymore?, (Dec. 2, 2009), https://www.spamtacular.com/2009/12/02/when-is-transactional-mail-not-transactional-anymore/. ↩︎
