With the holiday mailing season nearly upon us, senders are thinking hard about ways to maximize their marketing touches – and not solely through raw increases in total volume. I fielded this question recently from an anxious customer, and it struck me that others may be posing a similar question to their own deliverability folk, or to the empty air if they don’t know any:

I have an old best practice in my head that transactional emails need to have 80% transactional content and 20% marketing to be CAN SPAM compliant. Is this still true or is the rule different?

Let’s just dispose of some important caveats right up top:

• I am not a lawyer, nor do I play one on TV. Where questions of law arise, please consult competent legal counsel; and
• We’re talking truly transactional mail as the ISPs conceive of it. High engagement triggered mail is not necessarily transactional. If the mail does not confirm or facilitate a commercial transaction that the recipient has already agreed to, the message is likely not truly transactional.

One of the many infuriating shortcomings of CAN-SPAM is that the language of the law fails to advance anything terribly prescriptive around this exact issue. The law refers to a “primary purpose” of an email message but does not proffer any kind of test that might be applied by a court or by a sender to determine primary purpose.

Here’s some clarifying language from the FTC, which has primary responsibility for enforcement of the statute (and I use the word “clarifying” well-salted):

If a recipient reasonably interpreting the subject line would likely conclude that the message contains an advertisement or promotion for a commercial product or service or if the message’s transactional or relationship content does not appear mainly at the beginning of the message, the primary purpose of the message is commercial. So, when a message contains both kinds of content – commercial and transactional or relationship – if the subject line would lead the recipient to think it’s a commercial message, it’s a commercial message for CAN-SPAM purposes. Similarly, if the bulk of the transactional or relationship part of the message doesn’t appear at the beginning, it’s a commercial message under the CAN-SPAM Act.

So the answer to the question – in my opinion – is that the 80/20 rule of thumb proposed by the customer is probably pretty good howsoever one might measure the ratio of content types within the message.

But the FTC makes it clear that senders should be very diligent with subject lines to ensure it reflects clearly what the primary purpose of the message really is, and how it might be interpreted by recipients.