Do Gmail’s Promotion Tab Ads Violate CAN-SPAM?

In the past few weeks, there has been lots of discussion about and worry from email marketers about Gmail’s new Promotions tab.

Because this tab automatically funnels promotional messages away from personal messages, email marketers have wondered: How much will this new tab hinder my marketing efforts? Will consumers even look at my marketing messages?

There are a variety of opinions on these questions. But, one fact remains true: the Promotions tab is an effort by Gmail to not only organize the inbox, but to monetize it.

Case in point: Gmail has begun placing ads in the Promotions tab.

For email marketers, this new advertising feature can be a fantastic investment for (at least) three reasons:

  • First, because Google places these ads at the top of the inbox, marketers’ emails don’t get buried below a pile of promotional emails.
  • Second, because Google has applied their vast network of data -- including information from Google search, web history, social media interactions, email, and more -- these ads go to those consumers most likely to click on them.
  • Third (and for marketers, best of all), Google sends these ads to consumers whether or not they have opted-in to receive marketing emails.

Gasp. These ads are unsolicited by consumers? Double gasp. These "email" ads don’t contain an unsubscribe! Hold the phone. Consumers can’t mark them as spam! These "emails" violate CAN-SPAM! Right?

Nope!

The CAN-SPAM Act allows direct marketing email messages to be sent to anyone, without permission -- as long as they:

  1. Identify the message as an ad
  2. Obtain email messages in approved ways, which includes all avenues except harvesting or randomly-generating addresses
  3. Provide opt-out instructions, and honor those requests within 10 days

Let’s compare Gmail’s promoted ads with the above requirements:

  1. Identify the message as an ad. Check. As you can see in the screenshot above, these messages are clearly identified as ads.
  2. Obtain email addresses in approved ways. Check. These messages were not sent to addresses garnered through automated bots or harvesters, but to addresses owned by consumers with relevant interests to the ad.
  3. Provide opt-out instructions. Uh oh... there are no opt-out instructions. See? They violate CAN-SPAM!

Not so fast. Despite the fact that these ads jibe with two of the three provisions above, the whole conversation is a moot point. Though these promotions may look like emails subject to CAN-SPAM, but are in fact ads covered by the provisions in Google’s Display Network (a group of millions of advertisers that have partnered with Google). Though the ads are served in the inbox, they are not sent to an email address.

Case in point: they don't appear in any email client. One only sees them in the Gmail webmail interface.

Because these ads are technically part of Google’s Display Network, and not technically unsolicited marketing emails, consumers must opt-out of receiving these interest-based ads directly through Google.  

For years, Google has automatically scanned its users’ emails, cross-referenced cookies of their search queries, and monitored its users’ actions to send relevant search results and ads. These ads found in the Promotions tab are just the most recent version. And, they would not have been possible without the Promotions tab.

Has Google solved the problem of how to send relevant content to email consumers? That question remains to be seen.

Want to see how your marketing emails are faring before and after Gmail tabs? Visit emailintelligence.com to find out!