The Washington Commercial Electronic Mail Act (CEMA), enacted in 1998, prohibits sending deceptive commercial emails and imposes a $500 penalty per violation regardless of an actual showing of damages. Section 19,190.020(1)(b) of CEMA expressly prohibits sending commercial emails if the subject line contains false or misleading information. Historically, the statute was interpreted to apply to emails with subject lines that mislead recipients regarding the email’s content or purpose.
However, in a 2025 opinion, the Washington Supreme Court expanded the interpretation of the statute to apply to any commercial email subject line that contains false or misleading information, broadening the law’s reach.
In Brown v. Old Navy, LLC, the Washington Supreme Court issued a 5-4 opinion interpreting CEMA’s applicability in response to a certified question from a Washington federal court. In Brown, which is currently pending in the U.S. District Court for the Western District of Washington, the plaintiffs allege that Old Navy violated CEMA by sending emails containing inaccurate and misleading information regarding the duration of its promotional sales. The plaintiffs claim that Old Navy intended to create a sense of urgency for shoppers, encouraging them to read Old Navy promotional emails and buy Old Navy products. Old Navy moved to dismiss the lawsuit, arguing that CEMA only prohibits email subject lines that are commercial in nature. Faced with an unresolved question of state law, the federal court issued a certified question to the Washington Supreme Court.
At the Washington Supreme Court, the plaintiffs argued the CEMA violations occurred when Old Navy sent emails that announced offers that were available for longer than the time stated in the subject line, emails that falsely suggested an old offer was new, emails that falsely suggested an offer was ending, and emails that falsely stated a promotion was extended. Examples include:
Old Navy argued that the Washington Supreme Court should interpret the statute consistent with prior Washington court decisions holding that CEMA applies only to emails with subject lines that mislead recipients regarding the email’s content or purpose. Plaintiffs argued that the statute prohibits any false or misleading statement in the subject line of a commercial email regardless of whether the statement misleads recipients about the purpose or content of the email.
The court rejected Old Navy’s position and held that the statute is broad and targets any false or misleading information in the subject line. In its decision, the court also clarified that mere puffery or subjective statements, opinions, and hyperbole expressions, such as “Best Deals of the Year,” are not actionable under CEMA.
The Brown decision may be the harbinger of similar opinions from other state supreme courts, as Washington is not the only state that regulates commercial email practices. Similar laws across states and at the federal level have been enacted to curb false or misleading commercial email communications. For instance, Florida’s Electronic Mail Communications Act § 668.603(1)(c) prohibits the transmission of emails containing false or misleading information in the subject line and imposes a $500 penalty for each violation.
California has also implemented legislation regulating commercial emails. The California Anti-Spam Law (Business and Professions Code § 17529.5(a)(3)) prohibits sending commercial emails with subject lines that knowingly mislead recipients regarding the content or topic of the message and imposes higher penalties per violation than CEMA. Following the Brown decision, the current scope of California’s statute is narrower than CEMA, but plaintiffs may try to test its scope.
Given the complex regulatory landscape and the financial incentives to plaintiffs provided by statutory penalties, email marketing may face increased risk outside of Washington through additional actions trying to expand the scope of the state laws.
Businesses who engage in email marketing may have developed internal guidelines and checklists directing their use of email marketing to communicate with consumers. Given the new interpretation of CEMA, businesses using email marketing should ensure their guidelines and practices remain compliant with the law. We are already seeing an uptick in CEMA litigation in the wake of the Brown opinion, so businesses utilizing email marketing should also pay close attention to how these laws are evolving.