A frequent conversation we have here at Rejoiner relates to the legal implications of sending cart abandonment email. Many prospective customers come to us with questions about where remarketing emails “fit” into CAN-SPAM compliance and deliverability best practices.

In short, remarketing is permitted under the laws of the United States through the Controlling the Assault of Non–Solicited Pornography and Marketing Act of 2003, or CAN-SPAM as it is more commonly known (15 U.S.C. 7701, et seq.). Remarketing emails can be classified as transactional or relationship messages and are not the standard commercial messages that are more strictly controlled by the statute.

According to the FTC, CAN-SPAM requires commercial messages to meet the following criteria for compliance: (1) Don’t use false or misleading header information; (2) Don’t use deceptive subject lines; (3) Identify the message as an ad; (4) Tell recipients where you’re located; (5) Tell recipients how to opt out of receiving future email from you; (6) Honor opt-out requests promptly; and (7) Monitor what others are doing on your behalf.

A transactional or relationship message is defined by the FTC as “any electronic mail message the primary purpose of which is– i) to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender…” To determine if an email is a commercial message or a transactional or relationship message, what matters is the primary purpose of the email. If an email is a transactional or relationship message, then the email must not contain false or misleading information, but is otherwise exempt from most provisions of CAN-SPAM.

In applying these concepts to remarketing, remarketing can be classified as a transactional or relationship message. While an online shopper did not “opt-in” to receive a follow up email, the cart abandonment email is facilitating the completion of a commercial transaction that the recipient began to enter into with the sender, but did not finish, for whatever reason. An online shopper abandoning a purchase after entering an email address is expressing a high level of intent around buying and has taken an action in terms of starting the checkout. By not completing the checkout, it means that something stopped them along the way. It’s simply a good business practice to reach out and offer customer service assistance.

The information contained in this post is for general guidance on CAN-SPAM, which applies in the United States only. The information you obtain in this eBook is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation.

Mike Arsenault
Mike Arsenault is the Founder & CEO of Rejoiner. He works with 350+ online retail & eCommerce companies like Hydroflask, Footjoy, GUESS, and Big Chill to help them grow faster using lifecycle email. He also once lived aboard a 36' sailboat in Boston.