CAN-SPAM for Small Shops: What Every Marketing Email Needs

Every promotional email a shop sends must follow the CAN-SPAM Act, whether it goes to 20 people or 20,000. The FTC says the law "doesn't apply just to bulk email" and that it makes no exception for business-to-business messages. The FTC's guide, last edited in January 2024, lists penalties of up to $53,088 for each separate email in violation. That cap is adjusted for inflation, so check the FTC's current figure.

1. What counts as a commercial email

The test is the message's "primary purpose." A commercial message is one whose primary purpose is the commercial advertisement or promotion of a product or service, including email that promotes content on a commercial website. A newsletter that mostly points to your product pages is commercial.

The FTC's CAN-SPAM Rule (16 CFR 316.3) sets the same test for mixed messages, looking at the subject line and the body, including whether promotional content sits at the beginning. The FTC describes three kinds of content in an email:

• Commercial: advertises or promotes a product, service or commercial website.
• Transactional or relationship: facilitates an agreed-upon transaction or updates a customer about an ongoing one.
• Other: neither of the above.

If an email has only commercial content, it is commercial. If it has only transactional content, most of the law's requirements fall away, though the routing information must still be truthful.

2. The main requirements for a commercial email

The FTC's rundown of the main requirements:

1. No false or misleading header information. The "From," "To," "Reply-To" and routing information, including the originating domain and email address, must be accurate and identify who sent the message.
2. No deceptive subject lines. The subject must reflect what is inside.
3. Identify the message as an ad. The law gives leeway in how, but the disclosure must be clear and conspicuous.
4. Include your physical postal address. Per the FTC, this can be a current street address, a post office box registered with the U.S. Postal Service, or a private mailbox registered with a commercial mail receiving agency. This matters for a shop run from home: a registered box can stand in for a home address.
5. Explain how to opt out. The explanation must be clear and conspicuous, easy for an ordinary person to recognize and read. Give a return email address or another easy internet-based way. You may offer a menu of choices, but one option must stop all marketing email from you.
6. Honor opt-outs promptly. The opt-out method must keep working for at least 30 days after you send the message, and you must honor a request within 10 business days.
7. Monitor what others do on your behalf. Hiring an email service does not hand off the legal responsibility. The FTC says both the company whose product is promoted and the company that sends the message may be held responsible.

3. What you cannot demand from someone who opts out

The FTC says you can't charge a fee, require anything beyond an email address, or make the person take any step other than replying to an email or visiting a single web page. Once someone opts out, you can't sell or transfer their address, even as part of a mailing list. The only exception is transferring it to a company you hired to help you comply.

The FTC also tells senders to make sure their spam filter does not block opt-out requests.

4. Which of a shop's emails are transactional

The FTC says an email is transactional or relationship only if it consists solely of content that:

• facilitates, completes or confirms a commercial transaction the recipient already agreed to,
• gives warranty, recall, safety or security information about a product the recipient bought,
• notifies the recipient about a change in terms, features or standing in an ongoing relationship such as a membership or account,
• provides information about an employment relationship or employee benefits, or
• delivers goods or services as part of an agreed transaction.

So an order confirmation, a shipping notice and a recall notice for something the buyer purchased fit those categories. A "new arrivals" email or a coupon does not, even if it goes only to past customers. The FTC reads the categories narrowly and warns against assuming that any email to someone with an ongoing relationship is transactional.

5. Mixing a promotion into an order email

Shops often want to add a promo to a confirmation. The FTC gives a rule: when an email mixes commercial and transactional content, look at the subject line and where the content sits. If a reasonable reader of the subject line would conclude the message is an advertisement, or if the transactional content does not appear mainly at the beginning, the primary purpose is commercial and every requirement applies.

In the FTC's two examples, an account statement with account details first and a short promotion last was most likely transactional. The same subject line with promotions up top and the status at the bottom was most likely commercial. The safe pattern is order details first, a short promo last, and a subject line that describes the order.

6. Subscribers and members

Joining a loyalty program does not remove the right to opt out of marketing, per the FTC.

7. Referral emails

If you give money, coupons or discounts for forwarding a message, the FTC says the seller may be responsible for compliance.

8. A pre-send checklist

• Does the From name and address truthfully identify your shop?
• Does the subject line match the content?
• Is a valid postal address in the footer?
• Is there a clear way to opt out, and is that inbox or page checked often enough to meet the 10-business-day deadline?
• Do you remove opted-out addresses within 10 business days, and never sell them?
• If a platform sends for you, do you know how it handles opt-outs?

9. Key takeaways

• CAN-SPAM covers all commercial email, including small lists and business-to-business messages.
• The FTC guide (edited January 2024) lists penalties up to $53,088 per email, adjusted for inflation over time.
• Every commercial email needs honest headers, an honest subject, an ad label, a postal address and a working opt-out.
• Honor opt-outs within 10 business days and keep the opt-out method working for at least 30 days after sending.
• Order confirmations and shipping notices are transactional; promotions are not, even for past customers.
• Using an email service does not transfer your legal responsibility.