Whether these emails must comply with the CAN-SPAM rules hinges on whether the emails’ “primary purpose” is deemed to be “commercial” — a fact specific inquiry that depends on the subject line and content of the email. If you are unsure how these emails would be characterized, the conservative approach would be to ensure that they comply with the CAN-SPAM Act’s requirements.

The CAN-SPAM Act applies only to commercial emails, defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” The term does not include a “transactional or relationship message” which, among other things, means “an electronic mail message the primary purpose of which is . . . to facilitate, complete, or confirm a commercial transaction that the recipient has previously agreed to enter into with the sender.”

Since the emails’ intended recipients already have closed on their residential mortgage loans, it is unlikely that the portions of the email related to congratulating your residential mortgage loan customers and checking in with them would be deemed as facilitating, completing, or confirming a commercial transaction, or meet any of the other examples of transactional or relationship messages included in the resources below. Rather, we believe these portions of the email likely would be deemed “other content,” while the portion of the email encouraging your customers to refer others to your bank’s loan products likely would be deemed “a promotion of a commercial product or service.”

In cases where an email contains both a promotion of a commercial product and other content that is not transactional or relationship content, the CAN-SPAM Act regulations provide that the primary purpose of a message is considered commercial if: “(i) a recipient reasonably interpreting the subject line of the electronic mail message would likely conclude that the message contains the commercial advertisement or promotion of a commercial product or service; or (ii) a recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is the commercial advertisement or promotion of a commercial product or service.” Factors to consider when making such a determination include whether the commercial content is placed at the beginning of the body of the message, the proportion of the message dedicated to commercial content, and how color, graphics, type size, and style are used to highlight the commercial content.

Consequently, we recommend reviewing the subject line and content of your email with these factors in mind to determine whether its primary purpose is commercial and therefore subject to the CAN-SPAM Act’s requirements.

For resources related to our guidance, please see:

• CAN-SPAM Act, 15 USC 7702(2)(A) (“The term ‘commercial electronic mail message’ means any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service (including content on an Internet website operated for a commercial purpose). (B) The term ‘commercial electronic mail message’ does not include a transactional or relationship message.”)

• CAN-SPAM Act, 15 USC 7702(17)(A) (“The term ‘transactional or relationship message’ means an 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

(ii) to provide warranty information, product recall information, or safety or security information with respect to a commercial product or service used or purchased by the recipient;

(iii) to provide— (I) notification concerning a change in the terms or features of; (II) notification of a change in the recipient’s standing or status with respect to; or (III) at regular periodic intervals, account balance information or other type of account statement with respect to, a subscription, membership, account, loan, or comparable ongoing commercial relationship involving the ongoing purchase or use by the recipient of products or services offered by the sender;

(iv) to provide information directly related to an employment relationship or related benefit plan in which the recipient is currently involved, participating, or enrolled; or

(v) to deliver goods or services, including product updates or upgrades, that the recipient is entitled to receive under the terms of a transaction that the recipient has previously agreed to enter into with the sender.”)