Commercial message scope

Classify a commercial message before choosing a sending path. Read the draft as the recipient will, identify the action it invites, and consider the commercial activity behind it. An email asking for express consent to send future messages is itself treated as a commercial electronic message.¹ Include that consent step in the review from the start.

Start with the channel

Log the channel and destination before assessing the wording. This keeps the format from becoming a shortcut around classification.

The covered channel set includes email, texting, instant messages, messages to telephone accounts, and certain social media or other digital messages sent to specific electronic addresses.² Record where the message goes and whether it reaches a specific electronic address. Then identify what it asks the recipient to do.

Test commercial activity

Read the message from the recipient's side. Focus on the activity it encourages, including activity behind a request for a conversation.

Under CASL, a commercial electronic message is an electronic message that encourages participation in a commercial activity and is sent to or accessed from a computer system in Canada. A cold sales email falls within that category.³ Ask: "Do they contain commercial or promotional information, such as marketing, sales, offers, solicitations or similar activities?"⁴

Classify the draft before debating its tone or format. A message can market or promote a person for commercial purposes.⁵ Do not limit the review to product names or direct purchase offers.

Separate the ask from the purpose

A message can ask for permission, introduce a service, or invite a commercial conversation. Keep the requested action and the commercial purpose in separate fields.

For a permission request, record what future communication the recipient is being asked to permit and what commercial activity sits behind it. When both are clear, move to the consent gate.

Apply the consent gate

Once the message fits the commercial electronic message category, treat classification as a send decision with a consent or exemption basis.

Subject to certain exemptions, a commercial electronic message cannot be sent to an electronic address unless the stated requirements are met.⁶ One listed requirement is consent from the recipient.⁷

Before sending, record two answers: what commercial activity the message encourages, and what consent or exemption supports sending it. If the second answer is missing, hold the message while you resolve the gap.

Keep the US test separate

Use a separate branch when the same outreach also needs a US commercial-message review. The primary-purpose test helps with mixed messages, while the Canadian review starts with commercial activity and the message's destination.

CAN-SPAM defines a commercial message as an email whose primary purpose is the commercial advertisement or promotion of a commercial product or service.⁸ For a mixed message, the subject line can make the message commercial if a recipient would likely view it as an advertisement, and the message can also become commercial when transactional content does not appear in whole or substantial part at the beginning.⁹ Placement, proportion, color, graphics, and type size all count in that assessment.¹⁰

A message containing only transactional or relationship content may be exempt from most CAN-SPAM provisions, although its routing information still cannot be false or misleading.¹¹ Keep that result separate from the Canadian classification so a transactional label from one review does not decide the other.

What not to do

Use the message, destination, and requested action as the review points rather than an internal label.

• Do not assume a business recipient or a small sending batch sits outside the US commercial-email rules. There is no B2B carve-out and no volume floor.¹²
• Do not treat CAN-SPAM as a bulk-only rule. It applies to more than bulk email.¹³
• Do not call a mixed message transactional after checking only the transactional section. The subject line and the placement of that content can make the message commercial.⁹