Washington’s HB 2274 Signals Changes to Email Marketing Liability Following Brown v. Old Navy

Increased Litigation Risk After Brown v. Old Navy Expanded Interpretation of CEMA

CEMA prohibits the sending of deceptive commercial emails and imposes monetary penalties for each violation, even in the absence of demonstrated damages. A 2025 Washington Supreme Court decision, Brown v. Old Navy, LLC, broadened CEMA to cover any false or misleading information in an email subject line, regardless of whether the statement misleads recipients about the email’s purpose or content. This decision significantly broadened the statute’s interpretation and expanded potential liability for businesses using email marketing. Since Brown, there has been a sharp rise in CEMA-related litigation in Washington and other states. See, e.g., Gay v. Dolls Kill, Inc., No. 3:25-cv-10482 (N.D. Cal.) (alleging CEMA violations).

In response to this increase in litigation, legislators introduced HB 2274 in January 2026 to amend portions of the statute. On March 6, 2026, the Washington Senate approved the bill, which now awaits the governor’s signature.

If enacted, HB 2274 would represent the first major revision to CEMA since its 1998 enactment. The bill signals a legislative effort to balance consumer protection with reasonable compliance obligations for businesses engaged in email marketing.

HB 2274 Aims to Reduce Liability and Clarify CEMA Compliance Obligations

HB 2274 is a direct response to the expanded interpretation of CEMA in Brown and the resulting increase in legal exposure for businesses. If enacted, HB 2274 would make the following key changes to the statute:

• Reduced Statutory Damages: Available damages would drop from $500 per violation to $100 per violation.
• Knowledge Requirement: A knowledge standard would be required to show proof of what the sender knew or reasonably should have known at the time the email was sent.
• Retroactive Application: The statute would apply to all causes of action commenced on or after its effective date, rather than based on when the alleged violation occurred.

If the governor signs HB 2274, the changes will have meaningful implications for both businesses and consumers. The lower statutory damages and explicit knowledge requirement could reduce litigation risk and slow the filing of CEMA-related cases. Overall, the legislation seeks to balance consumer protection with fair and practical standards for commercial email marketing.

Key Takeaways for Businesses Using Email Marketing

HB 2274 has the potential to significantly reduce businesses’ exposure to CEMA claims. Nevertheless, companies that engage in email marketing should continue to ensure that their practices remain compliant with CEMA and all applicable laws. Notably, HB 2274 does not reduce the risk to businesses in states other than Washington that have similar laws. Therefore, businesses should remain attentive to future legislative and judicial developments in this area, which may affect compliance.