Are the new Gmail ads email?

I’ve seen lots of opinions over the last few weeks about whether or not the new ads in the Gmail promotions tab are email or not.

Google is using its latest inbox redesign to stick ads in the holiest of places: Right inside your Gmail inbox. Under the promotions tab — one of three sections in the new tabbed version of Gmail — Google has started sticking ads disguised as emails, as first noticed by Venture Beat’s Ricardo Bilton. See, it’s just right there in the inbox, looking like a regular e-mail. But, it’s an ad: [screenshot elided] The paid-message opens up like a regular e-mail. Only once inside the message, does it give the option to opt-out of that particular ad. Essentially, it’s Google approved junk-mail — like we need more of that. Atlantic Wire says email

[T]hey’re web-based advertisements formatted and presented in such a way as to closely resemble actual e-mail messages, but are otherwise very much like the ones Gmail users are accustomed to seeing to the right and above the inbox. There’s even some evidence to suggest that the new ads employ the same engine as the ordinary Gmail display ads to select and present those that Google deems a viewer is most likely to click. EmailSkinny says not email

It’s visible in your inbox, with a sender and subject line like an email. You can forward it to others as an email, just like an email. You can delete it, just like an email. New ones will arrive, just like email.
The UI for these advertising messages is slightly different from other gmail messages – but the UI for normal email marketers using microformats (https://support.google.com/webmasters/answer/146897?hl=en) is also different at gmail.
That it wasn’t delivered via SMTP isn’t really relevant – historically no email was delivered via SMTP, and even today there’s a lot of email that is delivered over non-SMTP protocols. Steve says email

It doesn’t show up in your inbox by IMAP or Pop, unlike email.
Is not sent by SMTP, unlike email.
A rose by any other name … is still an ad in the chrome.
Neil says not email

Gmail’s new layout doesn’t just keep your inbox organized, it also gives Google the perfect opportunity to send you unsolicited email ads.
Engadget says email

Personally, I was in the “not email, it doesn’t go over SMTP” camp for a while. I even made a rather public statement about that during a conversation about whether or not these were subject to the regulations of CAN SPAM. But, Steve is correct in pointing out that not all email goes over SMTP. In fact, if I mail him that mail doesn’t go over SMTP. I send it from my mail client, it shows up in his inbox, and never does it touch SMTP. Some Gmail to Gmail mail doesn’t touch SMTP either. Clearly SMTP is not a requirement for email.
Most email/not email discussions in the email marketing sphere have focused on the opt-out provision in CAN SPAM and whether or not the ads need to meet that standard. However, the ads do not contain a physical postal address. If Gmail thought they were emails, they would require advertisers to comply with CAN SPAM. So, Gmail doesn’t think they’re email.
Looking through press about the ads, mostly written by non email reporters, the consensus seems to be they are emails. But I’ve not seen any of the non-email press mention the legal implications. Gmail is not treating these like emails and thus are not complying with any of the 3 major provisions of CAN SPAM: there are no headers, there is no postal address, there is no opt-out.
What do you think about the ads? Does Gmail need to comply with CAN SPAM?

Ads in the Gmail Tabbed Inbox
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