Good afternoon,

I'm having some trouble finding the original CAN SPAM law. I'm seeking guideance on the part of the reg that states we must identify the message as an advertisement.

Per the FTC guide , "Identify the message as an ad. The law gives you a lot of leeway in how to do this, but you must disclose clearly and conspicuously that your message is an advertisement."

I'm searching for that leeway because Marketing has developed an ad that doesn't specifically say it's an ad, but a reasonable person would read the e-mail and instantly know it's an ad.

Can somebody provide some citation?

Thanks in advance.

Here's a link to the Act: https://www.law.cornell.edu/uscode/text/15/chapter-103

The requirement you're looking for is in § 7704(a)(5).

I understand that a commercial electronic message does NOT include transaction or relationship messages

15 U.S. Code § 7702 (17) Transactional or relationship message
(A) In generalThe term “transactional or relationship message” means an electronic mail message the primary purpose of which is—
(v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.

Would (17)(A)(v) apply to something like the availability of electronic statements…..it’s a new service that will be available for any checking/savings account…..wondering if that could be considered a product update/upgrade….

I would consider that a transaction or relationship message. The bank is advising customers of a new feature of a product that they already have.

Thanks, Kathleen.

Think of it as a "feature", not a "service", and it's much easier to see the path to exemption. Services can be purchased as-is, but features are useful only to customers who are already signed up for the product to which the feature relates.

Thanks for clarifying that for me, Richard....

So if we are just responding one-on -one to a consumer via email as follow up to something ongoing do the emails have to contain the CAn Spam Required items like header, subject line, opt out(unsubscribe) ?

What you describe sounds like a "transaction or relationship message". Search for that term in the Act and you'll find the section of the Act exempting TORMs.