As a kid, my mother would pan-fry some slices of canned spam once or twice a year. I never really knew what was in Spam as a kid, and as an adult I haven’t eaten it in years! Standing for ‘Special Processed American Meat’ in the UK or ‘Spiced Ham’ in the US, the texture, content, and makeup is still largely unknown to most individuals who eat it. Mysteriously, Spam is found in almost every major grocery chain and can remain shelf-stable for potentially 2-5 years. Many a comedian has joked that the three things to survive a nuclear holocaust would be Spam, cockroaches, and twinkies.
Most unabashedly, Spam now barges into our everyday life. In general, we correlate it with telemarketing phone calls, miscellaneous mailed advertisements, and yes, even unsolicited bulk email.
In an effort to minimize and control the mass distributions of non-solicited pornography and marketing, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act to set the national standard for the regulation of unsolicited emails.
So what does this mean? When we are talking about banking, we are primarily looking at the marketing element of the Act. The Act covers sending electronic commercial messages to existing and potential customers, including consumers and businesses. The email itself is considered to be commercial if the main purpose is to sell a product or service.
When preparing to send out a commercial message to their existing or potential customers, the bank should first obtain affirmative consent to send the email, and the bank should make sure to include the following in the email itself:
- An accurate header information
- A subject line that is not misleading
- The actual physical location of the bank
- A statement identifying the message as an ad
- A statement identifying how the recipient can opt-out of receiving future emails from you
This, however, does not conclude the bank’s responsibility. Once the email has been drafted and sent out, the bank is required to honor any opt-out requests that they may receive within 10 business days. Furthermore, not only should the bank monitor the commercial messages that they are sending, but any that are being sent out on their behalf (e.g., third-party vendor). The law makes it clear that even if you hire another company to handle your email marketing, you can’t contract away your legal responsibility to comply with the law. Both the company whose product is promoted in the message and the company that sends the message may be held legally responsible. As such, the bank should establish policies and procedures that allow them to make sure their commercial messages are meeting the required elements.
It is important to note, there is one – fairly large – exception to CAN-SPAM. Since CAN-SPAM applies to ‘Commercial Messages’, it would not apply to emails that are transactional or relationship in nature. This means that in the event that a bank is sending emails out that are multi-purposed, they should determine what the primary purpose is. The FTC’s regulations provide further clarification regarding the determination of whether an e-mail message has “commercial” promotion as its primary purpose: [16 CFR 316.3]
(1) The primary purpose of an e-mail message will be deemed to be commercial if it contains only the commercial advertisement or promotion of a commercial product or service (commercial content);
(2) The primary purpose of an e-mail message will be deemed to be commercial if it contains both commercial content and “transactional or relationship” content (see below for definition) if either:
- § A recipient reasonably interpreting the subject line of the e-mail message would likely conclude that the message contains commercial content; or
- § The e-mail message’s “transactional or relationship” content does not appear in whole or substantial part at the beginning of the body of the message.
(3) The primary purpose of an e-mail message will be deemed to be commercial if it contains both commercial content as well as content that is not transactional or relationship content if a recipient reasonably interpreting either:
- § The subject line of the e-mail message would likely conclude that the message contains commercial content; or
- § The body of the message would likely conclude that the primary purpose of the message is commercial.
(4) The primary purpose of an e-mail message will be deemed to be transactional or relationship (non-commercial) if it contains only “transactional or relationship” content.
In today’s environment, people expect to get Spam (the email variety). Nevertheless, the bank should make sure they are properly meeting the CAN-SPAM requirements to help minimize any potential marketing risks.