Give every email to a past client one clear job, because CAN-SPAM judges it by what it's mainly for
The Federal Trade Commission's CAN-SPAM compliance guide says the law sorts email by its "primary purpose," and for a mixed email it weighs the subject line and where the promotion sits. My view is that US agents should decide what each past-client email is for before writing it, and keep promotion out of the personal notes.
Key points
- The FTC's CAN-SPAM compliance guide says the law covers all commercial email, not only bulk email, and gives a message to former customers announcing a new product line as an example of email that must comply.
- When an email mixes promotion with other content, the FTC treats it as commercial if a recipient reading the subject line would likely conclude it's an ad, or if the body reads as mainly promotional, with placement, amount and visual emphasis among the factors.
- Liv's reading for US agents: decide what each past-client email is for before writing it, keep personal check-ins free of promotion, and send listings and offers as separate emails that meet every CAN-SPAM requirement.
The FTC's CAN-SPAM rules reach any promotional email, including one to a former customer
The FTC's guide, CAN-SPAM Act: A Compliance Guide for Business, describes the CAN-SPAM Act as "a law that sets the rules for commercial email." It says that despite its name, the law "doesn't apply just to bulk email." It covers all commercial messages, which the law defines as "any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service."
The example the FTC picks is close to home for agents. All email must comply, the guide says, including "a message to former customers announcing a new product line." Swap the product line for a new listing or a home valuation offer and you have a familiar email to a past client.
The guide lists the main requirements for a commercial message. The header information has to be accurate and identify who sent it, and the subject line has to reflect the content. The message has to disclose clearly and conspicuously that it's an ad, and it has to include a valid physical postal address. It has to explain how to opt out of future marketing email, and you have to honor opt-outs within 10 business days. The FTC also warns that you can't contract away your responsibility when someone else sends email on your behalf. Each separate email that breaks the law is subject to penalties of up to $53,088.
The guide sorts email content into three kinds. Commercial content advertises or promotes a product or service. Transactional or relationship content facilitates a transaction the recipient has already agreed to, or updates a customer about one that's ongoing. Everything else is "other content," which the guide describes as "neither commercial nor transactional or relationship."
A mixed email is judged by its subject line and what comes first
Most of the emails agents send to past clients are some mix of these, and the FTC's guide explains how it sorts a mixed message. When an email combines commercial content with "other" content, its primary purpose is commercial if a recipient "reasonably interpreting the subject line would likely conclude that the message advertises or promotes a commercial product or service," or if a recipient reading the body would likely conclude its primary purpose is to advertise. The guide names the factors that shape that reading: where the commercial content sits, how much of the message it takes up, and how color, graphics and type size are used to highlight it.
The guide's two sample emails make the point about order. Both carry the subject line "Your Account Statement." The first opens with the customer's shipment and payment details and ends with one line promoting a new product, and the FTC calls it "most likely a transactional or relationship message." The second opens with a sale and ends with the order details, and the FTC calls it "most likely a commercial message subject to all CAN-SPAM's requirements." A transactional subject line didn't change the outcome once the promotion came first.
The transactional category is also narrower than it sounds. The guide lists five kinds of transactional or relationship message and says "the law views these categories narrowly," so you "shouldn't assume" that every message to someone with an ongoing commercial relationship qualifies. As I read the list, emails that move a client's deal toward closing fit the first category, which covers messages that facilitate, complete or confirm a transaction the recipient already agreed to. After the closing, very little of what an agent sends a past client matches any of the five.
The guide is general business guidance from the FTC, and it doesn't mention real estate. Applying it to an agent's past-client emails is my own reading, and this article isn't legal advice. If you work in Canada, a different law applies, and I've written separately about how CASL treats implied consent from a past deal.
Decide what each email is for before you write the subject line
Agents I've spoken to have said their past-client emails often fold a listing or a market pitch into a friendly note. Here's what I'd change this month if that describes your inbox.
Name the job first. Before you write, decide whether the email is a personal note to someone you helped or a promotion of your services. It's much easier to keep a message on one side of the FTC's line when you've chosen the side at the start.
Keep personal notes personal from the subject line down. A note on a client's home anniversary or a question about how the move went belongs in a subject line and opening about them. A bolded "Thinking of selling?" banner at the top of a check-in is the kind of placement and emphasis the guide counts toward a commercial purpose. I've written about why past clients likely value a check-in more than you'd guess, and in my view a check-in that stays a check-in is also the easier email to keep compliant.
Send promotions as their own email, with every requirement in place. As I read the guide, a new listing announcement or an open house invitation is commercial content, so I'd send it on its own and make sure it meets each requirement listed above, including the ad disclosure, your postal address and a clear way to opt out. The FTC says you can offer a menu of message types to opt out of, as long as it includes the option to stop all marketing email from you.
Make opt-outs work across every tool you send from. The guide says an opt-out mechanism has to keep processing requests for at least 30 days after you send, and you have to honor a request within 10 business days. You can't charge a fee or ask for more than an email address, and once someone opts out you can't sell or transfer their address. As I read those rules, if you send marketing from both a CRM and your own inbox, someone who unsubscribes from one should stop getting marketing email from you in the other as well.
Treat referral rewards as part of the email. The FTC says that if a seller offers money or some other benefit in exchange for forwarding a message, or for "any form of referral," the seller is likely to have compliance obligations under CAN-SPAM. If you run a referral reward and ask past clients to forward your promotion, my reading is that you should treat the forwarded email as your own and make sure it meets every requirement.
Check what goes out under your name. The guide says that if you hire another company to handle your email marketing, both the company whose product is promoted and the company that sends the message may be held legally responsible. If your brokerage or a marketing service sends a newsletter promoting you, I'd read it with the same checklist you use for your own. For anything you're unsure about, ask your brokerage or a lawyer who knows the law.
Worthington drafts each nurture note around a reason the contact would recognize, such as a purchase anniversary or a follow-up they asked for, and nothing leaves your own account until you press Send. The decision about what an email is for stays with you, and it's a quick one to make while the subject line is still blank.
Frequently asked questions
Does CAN-SPAM apply if I only email one past client at a time?
The FTC's guide says the law "doesn't apply just to bulk email" and covers all commercial messages. Its own example of email that must comply is a message to former customers announcing a new product line. The number of recipients doesn't take a promotional email outside the law.
Is a happy home anniversary email a commercial message?
The FTC decides by the email's primary purpose. The guide describes content that's neither commercial nor transactional as "other content," and a note with no promotion in it would sit there, as I read it. If you add promotion, the FTC looks at whether the subject line or body would lead a reasonable recipient to conclude the email is mainly an ad, so keep any mention of your services out of the subject line and opening.
Are emails to clients during a transaction covered?
The guide treats content that facilitates, completes or confirms a transaction the recipient has already agreed to as transactional or relationship content. A message made up only of that content is exempt from most of CAN-SPAM's provisions, although its routing information still can't be false or misleading. The FTC says it reads these categories narrowly, so promotion added to a deal update can change how the email is judged.
What if my brokerage sends the newsletter that promotes me?
The FTC says you can't contract away your legal responsibility to comply, and both the company whose product is promoted and the company that sends the message may be held responsible. Read the newsletter with the same checklist you'd use for your own email, and ask your brokerage how they handle the opt-out requests it receives.
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