Emailing Past Customers: CAN-SPAM for Contractors

“Can I send a spring reminder email to my old customers?” Yes. Email works differently from calls and texts: the federal law for commercial email, the CAN-SPAM Act, does not make you ask first. It sets rules for what the email says and makes you stop when someone asks. Its requirements in 15 U.S.C. §7704(a) are about honest headers and subject lines, an ad label, an opt-out and your address, and none of them is prior permission. Get those few things right and a seasonal email to past customers is one of the cheapest ways to fill the calendar.

Calls and texts follow other rules. Calling and Texting Past Customers covers those. One narrow kind of email is closer to a text: an FCC rule bars sending a commercial email straight to a phone through its wireless carrier’s email address without the person’s express prior authorization, and the FCC keeps a list of those wireless domain names to check addresses against (47 CFR §64.3100(a)).

It is not just for bulk mailers

The FTC’s guide is blunt about this: “Despite its name, the CAN-SPAM Act doesn’t apply just to bulk email. It covers all commercial messages,” which the law defines as any email whose primary purpose is “the commercial advertisement or promotion of a commercial product or service.” Ten emails to past customers about gutter cleaning are covered the same as ten thousand. The FTC puts the penalty at up to $53,088 for each email that breaks the law.

First, sort the message: transactional or commercial

The law cares about the email’s primary purpose. The FTC lists five kinds of “transactional or relationship” content, and an email made only of them “may not contain false or misleading routing information, but is otherwise exempt from most provisions” of the act. Content that:

• Facilitates, completes or confirms a commercial transaction the recipient already agreed to.
• Gives warranty, recall, safety or security information about a product or service the recipient bought.
• Notifies the recipient of a change in the terms or features of a membership, subscription, account, loan or other ongoing commercial relationship.
• Provides information about an employment relationship or employee benefits.
• Delivers goods or services as part of a transaction the recipient already agreed to.

For a contractor, that means the invoice, the appointment confirmation for a booked job and the warranty letter are transactional. So is a note to past customers that a product you installed has been recalled. A spring offer or a “time to book your fall tune-up” email is commercial, because its point is to sell a service the customer has not yet agreed to buy; a newsletter with a coupon usually is too.

Mixed emails are where it gets decided. Under the FTC’s rule, an email with both transactional content and an ad is commercial if a recipient reading the subject line would likely conclude it contains an ad, or if the transactional content does not appear, in whole or in substantial part, at the beginning of the body (16 CFR §316.3(a)(2)).

Say a deck builder emails last summer’s customers a year after their jobs. Version one is headed “Your deck’s workmanship warranty: what it covers,” opens with the warranty terms and the end date, and closes with one line saying staining is booking for May. Version two is headed “Spring staining special, plus your warranty,” and leads with the offer. By the rule’s two tests, the first can stay transactional and the second is commercial. When in doubt, treat the email as commercial and meet the requirements below; they cost almost nothing. The warranty letter itself comes from the end of the job; Closing Out a Job covers what goes in it.

What every commercial email needs

• Honest headers. The From, To and Reply-To lines and the routing information must be accurate and identify your business as the sender.
• A subject line that matches the email. The FTC: it “must accurately reflect the content of the message.” No “Re: your invoice” on a sale.
• Say it is an ad. The FTC says the law gives “a lot of leeway in how to do this,” but the disclosure must be clear and conspicuous. The statute drops this one requirement for a recipient who has given prior affirmative consent to the message (15 U.S.C. §7704(a)(5)(B)); the address and opt-out still apply.
• Your valid physical postal address. Your street address, a post office box registered with the Postal Service, or a private mailbox registered with a commercial mail receiving agency (16 CFR §316.2(p)). If you run the business from home, a box keeps your house number off every email.
• A clear way to opt out that keeps working for at least 30 days after you send.
• Opt-outs honored within 10 business days. You may not charge a fee, ask for anything beyond the email address and opt-out preferences, or require any step beyond replying to the email or visiting a single web page (16 CFR §316.5).
• Opt-outs stay out. Once someone asks to stop, the FTC says you “can’t sell or transfer their email addresses, even in the form of a mailing list.”

If an email service sends for you, the responsibility stays yours: in the FTC’s words, “you can’t contract away your legal responsibility to comply with the law.” And a state’s own commercial email law mostly gives way to CAN-SPAM, which supersedes state laws that expressly regulate commercial email, except to the extent they prohibit “falsity or deception” in the message (15 U.S.C. §7707(b)(1)).

The law is the floor; Gmail is the inbox

Meeting the law gets you legal, not delivered. Google’s sender guidelines for Gmail, from the SPF and DKIM setup to the spam-rate limit, are covered in Domain Email and Deliverability. Two of them matter most for a past-customer list. The visible unsubscribe link in the body is a must only for senders of more than 5,000 messages a day to Gmail accounts, but it is good practice at any size, because a customer who cannot find the way out may reach for the spam button instead. And Google says to send only to people who subscribe to your emails, which is the best argument against buying a list.

A spring email that meets the rules

Say a gutter company emails its customers from the last two years in March:

Subject: Spring gutter cleaning: booking April and May

Hi Pat, this is [Business name]. We cleaned your gutters last April. Spring slots for cleaning and a downspout check are open now; reply to this email or use the booking link with the week that suits you.

This is an advertisement from [Business name], [street address or PO box]. Don’t want these seasonal emails? Reply “unsubscribe” or use this link, and we will take you off the list.

Then the routine that keeps it clean:

1. Send from your own business domain, with your business name as the sender.
2. Write down every unsubscribe the day it arrives, whether by link, reply or a word on the phone, and remove it before the next send.
3. Keep that do-not-email list when you change email services, and check every new list against it.
4. Send at the moments your trade has a season, a few times a year, rather than every week.
5. Keep warranty and recall notices as their own plain emails, with the information first.

The same rules apply to the email that follows up an estimate; Following Up an Estimate covers when that kind of email turns commercial.

General information, not legal or tax advice. Rules change and vary by state; check with the agency named above or a professional for your situation.