What if the Email Message Combines Elements of both a Commercial Message and a Message with Content Defined as "Other"?
In that case, the primary purpose of the message is commercial and the provisions of the CAN-SPAM Act apply if:
• A recipient reasonably interpreting the subject line would likely conclude that the message advertises or promotes a commercial product or service; and
• A recipient reasonably interpreting the body of the message would likely conclude that the primary purpose of the message is to advertise or promote a product or service.
Factors relevant to that interpretation include the location of the commercial content (for example, is it at the beginning of the message?); how much of the message is dedicated to commercial content; and how color, graphics, type size, style, etc., are used to highlight the commercial content.
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