The definition of “Affirmative Consent” CAN SPAM's (usage: commercial e-mail messages) provisions includes the following: The recipient expressly consented to receive the message, either in response to a clear and conspicuous request for such consent or at the recipient’s own initiative...

This appears to indicate that, in the absence of our customers taking the initiative to convey their preference, the bank must provide a method for prospective recipients of commercial messages, to provide their affirmative consent "prior to" the bank sending a commercial message(s).

Although, our new account disclosure states that we may use customers' email addresses to send messages, it doesn't distinguish between transactional of commercial messages. I'm trying to discern whether account holders' acceptance of our account terms constitutes affirmative consent, regardless of the fact that it doesn't reference commercial messages. Also, I was hoping to get other banks' perspectives as to how they achieve obtaining prior affirmative consent. Thank you and I welcome everyone's thoughts.

I do not believe that you are going to find too many people that would agree that a couple of lines buried in a new account disclosure meets the threshold of " in response to a clear and conspicuous request for such consent ".

Agreed. As stated, the rule states "prior" affirmative consent. I don't believe sending out a commercial message for the first time to a customer that includes an unsubscribe or opt out, and assuming the customer, does not opt out, would "not" constitute prior affirmative consent. Would you agree?

I'm not sure what is being looked for in this conversation but:

I haven't looked at CAN SPAM in quite some time (we don't utilize email marketing) but I seem to recall the affirmative consent only exempts you from having to identify the email as as a marketing piece. All other requirements in CAN SPAM would still apply which means even if you have the affirmative consent you would still need to include an opt out option in each email.

As I said I haven't delved into CAN SPAM for awhile so I would advise verifying the above statement.

Now with that said I agree the "affirmative consent" buried in an account opening disclosure would not meet the clear and conspicuous test that would exempt you from having to identify the email as a marketing solicitation.

I'm a little confused by the question. Are you asking whether affirmative consent to commercial emails in an account opening document allows you to avoid CAN-SPAM rules for opt-outs, or do you just want to avoid having to identify the message as an advertisement?

Transactional emails are ok regardless of consent, although you still shouldn't be deceptive or misleading in your header or subject line (not sure why anyone would with a transactional email in the first place), and I'm not aware of an affirmative consent requirement prior to sending the first commercial/marketing communication to a customer. You have to follow all of the CAN-SPAM rules for that communication (and every commercial email), which are helpfully laid out here: https://www.ftc.gov/business-guidance/resources/can-spam-act-compliance-guide-business

You have to provide an option to opt-out of further commercial emails, and you have to honor that request promptly if the individual chooses to opt-out. Affirmative consent in an account opening document would, in my opinion, not override the customer opting out of commercial emails. However, I also think it's still a good idea to include such language in your account agreement so that the customer understands that they may receive emails from your institution and the circumstances under which they may receive them.

I also think that Dan is right in that prior affirmative consent can get you out of having to clearly and conspicuously identify the message as an advertisement, but I would also agree with Randy that using the account agreement to get there likely wouldn't cover you with the exception and would create unnecessary risk. There could be other ways to go about gathering affirmative consent, but are customers offended that you describe an advertisement as an advertisement?