Research · 10 min read
What a Marketing Email From a Health Program Has to Contain
Federal law sets four things a commercial email must carry and one thing an unsubscribe link may not cost you. It also draws a line between a marketing message and an account message, which is why opting out of one does not stop the other.
Key takeaways
- A commercial email must identify itself as an advertisement, give clear notice of how to decline further messages, and carry a valid physical postal address.
- The opt-out mechanism must keep working for at least 30 days after the message was sent.
- A sender has 10 business days to stop sending commercial messages within the scope of an opt-out request.
- Unsubscribing may not cost a fee, require information beyond the email address and preferences, or take more than a reply email or a single web page.
- A valid physical postal address means a current street address, or a PO box or private mailbox accurately registered as the rule describes.
- Transactional and relationship messages — order confirmations, recall and safety notices, changes in terms or status, account statements, delivery of what you are owed — are a separate category an opt-out does not reach.
- Materially false or misleading header information is prohibited in transactional messages too, not only marketing ones.
- After an opt-out, transferring or releasing that email address, including via mailing lists, is unlawful except for compliance purposes.
- Where a single message promotes more than one company, each qualifying company is a sender unless one is named in the from line as the sole sender and meets the listed provisions.
Answer first: four requirements and a ten-day clock
The statute lists what a commercial email has to provide, and the list is short.
Clear and conspicuous identification that the message is an advertisement or solicitation. Clear and conspicuous notice of the opportunity to decline further commercial messages from the sender. And a valid physical postal address of the sender.
There has to be a working way out. A commercial message must contain a functioning return email address or other internet-based mechanism, clearly and conspicuously displayed. A recipient may use it to request not to receive future commercial messages at the address where the message was received.
That mechanism has a minimum lifespan. It must remain capable of receiving such messages or communications for no less than 30 days after the original message was sent.
Then the clock. Once a recipient uses that mechanism, it is unlawful for the sender to send a commercial message falling within the scope of the request more than 10 business days after receiving it.
One of the four has an exception. The advertisement-identification requirement does not apply if the recipient gave prior affirmative consent to receipt of the message.
Unsubscribing may not cost you anything, including information
The implementing rule adds a provision that closes the most common workaround.
Neither a sender nor anyone acting on behalf of a sender may require a recipient to pay any fee. Nor may they require any information other than the recipient's email address and opt-out preferences. Nor any other steps except sending a reply email or visiting a single internet web page.
That applies both to using the opt-out mechanism and to having the request honored.
Read the second half of it carefully, because that is the operative part. A single web page. Not a login. Not a survey. Not a phone call. Not a reason.
A menu is allowed, and it has a condition. The sender may offer a list from which the recipient chooses which types of messages to receive or not receive. The list has to include an option to choose not to receive any commercial messages from that sender.
The address has to be a real one, and the rule defines real
A physical postal address is the requirement most often satisfied with something questionable, so the rule defines the term.
A valid physical postal address means one of three things. The sender's current street address. A post office box the sender has accurately registered with the Postal Service. Or a private mailbox the sender has accurately registered with a commercial mail receiving agency established under Postal Service regulations.
Three things are permitted and each has a condition attached. Current, for the street address. Accurately registered, for both of the other two.
That is a checkable fact rather than a matter of taste. An address that does not correspond to any of those three shapes does not meet the definition the rule prints.
A marketing message and an account message are not the same thing
This distinction explains why unsubscribing does not stop everything, and it has a written test.
The rule sets out when a message's primary purpose is deemed commercial. If it consists exclusively of the commercial advertisement or promotion of a commercial product or service, it is commercial.
Say it mixes commercial content with transactional or relationship content. It is deemed commercial if a recipient reasonably interpreting the subject line would likely conclude it contains a commercial advertisement or promotion. It is also deemed commercial if the transactional content does not appear, in whole or in substantial part, at the beginning of the body.
If it mixes commercial content with other non-transactional content, the subject-line test applies again. So does a body test with named factors. Where the commercial content sits, what proportion of the message it occupies, and how color, graphics, type size and style are used to highlight it.
Running the other way, a message is transactional or relationship if it consists exclusively of transactional or relationship content.
What counts as an account message
The rule lists five categories, and reading them explains which emails keep arriving after you unsubscribe.
Content to facilitate, complete or confirm a commercial transaction the recipient previously agreed to enter into with the sender.
Content providing warranty information, product recall information, or safety or security information about a product or service the recipient used or purchased.
Content about a subscription, membership, account, loan or comparable ongoing commercial relationship. That covers notification of a change in terms or features, notification of a change in the recipient's standing or status, and at regular periodic intervals account balance information or another type of account statement.
Content directly related to an employment relationship or related benefit plan the recipient is involved in.
And content to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under a previously agreed transaction.
A recall notice and a change-of-terms notice both sit in that list. Neither is marketing, and neither stops because somebody clicked unsubscribe.
Headers and subject lines have their own rules
Two prohibitions apply before any of the content requirements come into play.
It is unlawful to initiate the transmission of a commercial message, or a transactional or relationship message, that contains or is accompanied by header information that is materially false or materially misleading. Note that this one reaches account messages too.
The statute then explains what counts. Technically accurate header information is still materially misleading if access to the originating address, domain name or internet protocol address was obtained by false or fraudulent pretenses or representations.
It is also materially misleading if it fails to identify accurately the computer used to initiate the message, where the sender knowingly used another one to relay or retransmit and disguise the origin.
And a from line that accurately identifies any person who initiated the message is not considered materially false or misleading.
Subject lines are separate. It is unlawful to send a commercial message with a misleading subject heading. The test turns on the sender's knowledge. It is whether the sender has actual knowledge, or knowledge fairly implied from objective circumstances. What must be known is that the heading would be likely to mislead a reasonable recipient about a material fact regarding the contents or subject matter.
Your address may not be sold after you opt out
One clause in the objection provision goes further than most people realize.
After a recipient has made an opt-out request, that address is locked down. It is unlawful for the sender, or any other person who knows the request was made, to sell, lease, exchange or otherwise transfer or release it.
The parenthetical closes the obvious route. That includes through any transaction or other transfer involving mailing lists bearing the recipient's email address.
The only permitted purpose for such a transfer is compliance with the statute or another provision of law.
Two further prohibitions extend liability outward. A person acting on behalf of the sender may not initiate a message within the scope of the request with actual or fairly implied knowledge. Nor may they assist in initiating one through the provision or selection of addresses, knowing it would violate those rules.
There is a way back in, and it requires you. The prohibitions do not apply where the recipient gives affirmative consent after making the request.
When more than one company is in the message
Co-marketed email is common in this category, and the rule decides who is answerable for it.
Where more than one person's products, services or website is advertised or promoted in a single message, each such person within the statutory definition is deemed to be a sender.
One escape exists and it has three conditions. Only one person is deemed the sender where three conditions hold. That person is within the definition, is identified in the from line as the sole sender, and is in compliance with the false-header, deceptive-subject-line, return-mechanism, identification-and-address and opt-out-cost provisions.
The practical reading is that a message promoting two brands generally has two answerable senders, unless one of them has taken on the whole obligation and said so in the from line.
Where this does not reach
Two limits are worth stating plainly, because assuming otherwise leads people to the wrong complaint.
This is an email statute. Phone calls and text messages are governed by different law with different consent rules, and none of the requirements above describe them.
And it governs the message, not the medical record. What a company may do with health information it holds about you sits under an entirely separate framework, and an unsubscribe click is not a privacy instruction.
The rule also carries a severability clause, saying its provisions are separate and severable and that if one is stayed or invalidated, the Commission intends the rest to continue in effect.
What this page does not tell you
Two boundaries, stated where you can see them.
Everything above is drawn from the federal commercial email statute and the Commission rule implementing it. No company's email practice was examined, and nothing here says that any program does or does not meet these requirements.
One section of the rule concerns warning labels on sexually oriented commercial email. It has nothing to do with this subject and is not described here.
Sources
- 16 CFR Part 316 — CAN-SPAM RuleSection 316.1 for the part implementing the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. Section 316.2(m) for each advertised person being deemed a sender where more than one person's products, services or website appear in a single message, and for the three-condition exception where one person is within the definition, is identified in the from line as the sole sender, and is in compliance with the listed statutory provisions and 16 CFR 316.4. Section 316.2(p) for the definition of valid physical postal address as the sender's current street address, a Post Office box accurately registered with the United States Postal Service, or a private mailbox accurately registered with a commercial mail receiving agency established pursuant to Postal Service regulations. Section 316.3(a)(1) for a message consisting exclusively of commercial advertisement or promotion being deemed commercial; 316.3(a)(2) for the mixed commercial-and-transactional test using the subject line and the placement of transactional content at the beginning of the body; 316.3(a)(3) for the mixed commercial-and-other test, including the body-interpretation factors of placement, proportion, and the use of color, graphics, type size and style; 316.3(b) for a message consisting exclusively of transactional or relationship content being deemed transactional or relationship; 316.3(c)(1) through (c)(5) for the five categories of transactional or relationship content. Section 316.5 for the prohibition on requiring any fee, any information other than the recipient's email address and opt-out preferences, or any steps except sending a reply email or visiting a single internet web page, applied both to using the mechanism and to having the request honored. Section 316.6 for the severability clause. Section 316.4 concerns warning labels on sexually oriented commercial email and is deliberately not described in the article.
- 15 U.S.C. 7704 — Other protections for users of commercial electronic mailSubsection (a)(1) for the prohibition on initiating a commercial message, or a transactional or relationship message, containing or accompanied by materially false or materially misleading header information, and for subparagraphs (A) through (C) covering addresses obtained by false or fraudulent pretenses, the from line that accurately identifies an initiator, and headers that fail to identify accurately a protected computer where another is knowingly used to relay or retransmit and disguise origin. Subsection (a)(2) for the prohibition on a subject heading the sender has actual knowledge, or knowledge fairly implied on the basis of objective circumstances, would be likely to mislead a recipient acting reasonably about a material fact regarding contents or subject matter. Subsection (a)(3)(A) for the functioning return email address or other internet-based mechanism, clearly and conspicuously displayed, and (A)(ii) for it remaining capable of receiving messages or communications for no less than 30 days after the original transmission; (a)(3)(B) for the permitted list or menu that must include an option to receive no commercial messages from the sender; (a)(3)(C) for the temporary technical failure allowance. Subsection (a)(4)(A)(i) for the 10-business-day limit on the sender, (a)(4)(A)(ii) and (iii) for persons acting on the sender's behalf, (a)(4)(A)(iv) for the bar on selling, leasing, exchanging or otherwise transferring or releasing the recipient's email address including through mailing list transactions except for compliance purposes, and (a)(4)(B) for subsequent affirmative consent lifting the prohibition. Subsection (a)(5)(A) for the three required elements — clear and conspicuous identification as an advertisement or solicitation, clear and conspicuous notice of the opportunity to decline, and a valid physical postal address of the sender — and (a)(5)(B) for the prior affirmative consent exception to the identification requirement.
Frequently asked questions
What does a commercial email legally have to include?
Clear and conspicuous identification that the message is an advertisement or solicitation. Clear and conspicuous notice of the opportunity to decline further commercial messages from the sender. And a valid physical postal address of the sender. It must also contain a functioning return email address or other internet-based mechanism, clearly and conspicuously displayed, that stays capable of receiving requests for no less than 30 days after the message was sent. The advertisement-identification requirement does not apply where the recipient gave prior affirmative consent.
How long can a company keep emailing me after I unsubscribe?
Up to 10 business days. It is unlawful for the sender to initiate transmission of a commercial message falling within the scope of the request more than 10 business days after receiving it. The same limit binds people acting on the sender's behalf who have actual knowledge, or knowledge fairly implied from objective circumstances, that a message falls within the request.
Can a company make me log in or answer questions to unsubscribe?
The rule says no. The rule says no. Neither a sender nor anyone acting for a sender may require a recipient to pay a fee. Nor to provide any information other than the email address and opt-out preferences. Nor to take any steps except sending a reply email or visiting a single internet web page. That applies both to using the mechanism and to having the request honored. A preference menu is allowed if it includes an option to receive no commercial messages from that sender at all.
Why do I still get emails after unsubscribing?
Because transactional and relationship messages are a different category. The rule lists five kinds. Facilitating, completing or confirming a transaction you previously agreed to. Warranty, recall, safety or security information about something you used or bought. Notices about a subscription, membership, account or comparable ongoing relationship, including changes in terms or status and periodic account statements. Employment or benefit plan information. And delivery of goods or services including updates you are entitled to. An opt-out covers commercial messages, not those.
How is it decided whether a message is marketing?
By a primary purpose test. A message consisting exclusively of commercial advertisement or promotion is commercial. A mixed message is commercial if a recipient reasonably interpreting the subject line would likely conclude it contains a commercial advertisement. It is also commercial if the transactional content does not appear in whole or substantial part at the beginning of the body. Where the other content is not transactional, a body test also applies, weighing where the commercial content sits, what proportion it occupies, and how color, graphics, type size and style highlight it.
What counts as a valid physical postal address?
The rule defines it three ways. The sender's current street address. A post office box the sender has accurately registered with the Postal Service. Or a private mailbox the sender has accurately registered with a commercial mail receiving agency established under Postal Service regulations. Current and accurately registered are the operative words.
Can my address be sold after I opt out?
No. After a request is made, it is unlawful for the sender, or any other person who knows of the request, to sell, lease, exchange or otherwise transfer or release that email address. That includes through any transaction or transfer involving mailing lists bearing it, for any purpose other than compliance with the statute or other law. That prohibition lifts only if the recipient gives affirmative consent after making the request.
Does this cover text messages?
No. This is an email statute and the requirements described here are written about commercial electronic mail messages. Phone calls and text messages are governed by different law with different consent rules, and nothing in these provisions describes them.