Not Everyone Uses "Primary Purpose"

Lululemon just paid AU$702,900 to Australia's communications regulator after sending more than 370,000 emails that mixed shipping and order confirmation content with promotional material, without giving recipients any way to opt out of the marketing.¹ The Australian Communications and Media Authority (ACMA) announced the enforcement action on March 10, 2026 (March 11, 2026, in Australia), making this the fifth time ACMA has penalized a business in 18 months for mischaracterizing commercial messages as non-commercial service communications.²

Lululemon's order confirmations and delivery notifications contained sales material and links to promotions.³ Under Australia's Spam Act 2003,⁴ that combination is enough to make the entire message a "commercial electronic message" subject to full consent and unsubscribe requirements. Whether the delivery notification was the primary reason for sending the email is irrelevant. As ACMA authority member Samantha Yorke put it, an electronic message containing any promotional or sales content "is considered commercial regardless of whether the message has any other purpose."⁵

U.S.-based email marketers who send overseas need to read that last sentence carefully.

The CAN-SPAM "primary purpose" test does not travel

Under the CAN-SPAM Act, the Federal Trade Commission uses a "primary purpose" test to classify messages.⁶ A transactional or relationship message with incidental commercial content can generally keep its transactional status, provided the commercial elements are not the predominant purpose of the communication. Many U.S. marketers have built their email programs around this rule, treating order confirmations and shipping updates as categorically exempt from opt-out requirements even when those messages include cross-sells or promotional banners.

The problem is that the framework is fairly specific to U.S. law. It does not exist in Australia, Canada, or the European Union.

Australia's Spam Act asks only whether the message has any commercial purpose. Canada's Anti-Spam Legislation (CASL) similarly defines "commercial electronic message" broadly, requiring consent for messages with any commercial function regardless of a transactional framing.⁷ The regime governing EU marketing communications centers on having a legal basis for processing, and it has no "primary purpose" test for blended messages.

The undertaking matters more than the fine

AU$702,900 sits in the middle of ACMA's recent enforcement history. The regulator has issued penalties of AU$4 million against Tabcorp⁸ and AU$7.5 million against Commonwealth Bank,⁹ both for higher-volume violations involving outright consent failures. The closer comparison is Luxottica, which paid AU$1,512,500 in 2024 on a nearly identical misclassification theory involving 45,000 messages.¹⁰ Lululemon's penalty covers more than eight times as many messages at roughly half the amount. I suspect the gap reflects that Lululemon's violations did not include sending messages more than 5 days after people asked to unsubscribe.

Against Lululemon's roughly US$11 billion in annual global revenue,¹¹ the money alone is not a meaningful deterrent. The more consequential outcome is the court-enforceable undertaking, which requires an independent review of Lululemon's spam rule compliance and reporting to ACMA on its remediation.¹²

A template that passes U.S. review can fail everywhere else

Companies operating in international markets have a compliance problem that CAN-SPAM compliance alone doesn't address. A single email template that passes U.S. legal review can violate the rules in other jurisdictions if it blends transactional content with any promotional material.

ACMA's guidance, repeated in the Lululemon announcement, is to keep transactional or service messages strictly separate from sales content and links.¹³ That advice is not new. The Spam Act has worked this way since 2003.

Organizations operating across multiple jurisdictions should audit their transactional email templates for embedded promotional content: banners, cross-sell modules, links to landing pages with commercial content, and social media links pointing to pages that promote goods or services. Removing that content from service messages, or building separate promotional streams with proper consent, is the technically correct approach under Australian, Canadian, and EU law.

CAN-SPAM's primary purpose test was never a global compliance strategy, and Lululemon now has a court-enforceable undertaking to show for treating it as one.

This post does not constitute legal advice. For guidance specific to your organization's compliance obligations, consult qualified legal counsel.