Yes, an email that mentions a deposit product’s APY will trigger the TISA’s additional advertising disclosures. Regulation DD’s advertising requirements expressly apply to one-on-one communications such as telephone solicitations, and we would read it as also applying to emails. While Regulation DD does exempt “in-person discussions with consumers about the terms for a specific account,” we do not read this “in-person” exemption as excluding email discussions with consumers.

We also believe that the CAN-SPAM Act would apply. That law applies to “commercial email,” defined as “any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service.” The FTC has stated that it does not intend its requirements to cover “isolated e-mail messages sent by individuals who are not engaged in commerce, but nevertheless seek to sell something to a friend, acquaintance, or other personal contact.” But when bank employees send emails to acquaintances to sell the bank’s products, we believe that the CAN-SPAM requirements for commercial emails would apply.

For resources related to our guidance, please see:

• Regulation DD, 12 CFR 1030.8(c) (“When additional disclosures are required. Except as provided in paragraph (e) of this section, if the annual percentage yield is stated in an advertisement, the advertisement shall state the following information, to the extent applicable, clearly and conspicuously: . . .”)

• Regulation DD, 12 CFR 1030.2(b) (“Advertisement means a commercial message, appearing in any medium, that promotes directly or indirectly: (1) The availability or terms of, or a deposit in, a new account; and (2) For purposes of §§ 1030.8(a) and 1030.11 of this part, the terms of, or a deposit in, a new or existing account.”)

• Regulation DD, Official Interpretations, Paragraph 2(b), Comment 1 (“Advertisements include commercial messages in visual, oral, or print media that invite, offer, or otherwise announce generally to prospective customers the availability of consumer accounts — such as: . . . (i) Telephone solicitations. . . .”)

• Regulation DD, Official Interpretations, Paragraph 2(b), Comment 2 (“Examples of messages that are not advertisements are: . . . (ii) In-person discussions with consumers about the terms for a specific account. . . .”)

• Regulation DD, Official Interpretations, Paragraph 8(e)(1)(i), Comment 1 (“The exemption for advertisements made through broadcast or electronic media does not extend to advertisements posted on the Internet or sent by email.”)

• CAN-SPAM Act, 15 USC 7704(5)(A) (“(A) It is unlawful for any person to initiate the transmission of any commercial electronic mail message to a protected computer unless the message provides (i) clear and conspicuous identification that the message is an advertisement or solicitation; (ii) clear and conspicuous notice of the opportunity under paragraph (3) to decline to receive further commercial electronic mail messages from the sender; and (iii) a valid physical postal address of the sender.”)

• CAN-SPAM Act, 15 USC 7704(5)(B) (“(B) Subparagraph  (A)(i) does not apply to the transmission of a commercial electronic mail message if the recipient has given prior affirmative consent to receipt of the message.”)

• 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; . . . .”)

• Final Rule, Definitions and Implementation Under the CAN-SPAM Act, 70 Fed. Reg. 3109, 3113 (January 19, 2005) (The “CAN-SPAM regulatory scheme” is not intended to “reach isolated e-mail messages sent by individuals who are not engaged in commerce, but nevertheless seek to sell something to a friend, acquaintance, or other personal contact.”)