Quick Snapshot for Businesses

Recent court decisions have expanded Washington's Commercial Electronic Mail Act (CEMA), increasing litigation risk tied to common email marketing practices for businesses that send marketing emails to Washington residents. Courts have also confirmed that federal CAN-SPAM protections do not preempt Washington's stricter standards, opening the door to statutory damages for misleading subject-line claims.

Why This Matters Now

If your company sends promotional emails that reference key elements of a promotion, such as discounts, timing, or availability, and those statements are not strictly accurate at the moment the email is sent, you may face exposure under Washington law, even if your emails otherwise comply with federal CAN-SPAM requirements. Recent decisions have emboldened plaintiffs to challenge routine marketing language, making subject-line accuracy a compliance issue, not just a branding concern.

Liability Under Washington’s Commercial Electronic Mail Act

Washington’s Commercial Electronic Mail Act (“CEMA”) applies to commercial messages that are either sent from a computer located in Washington or to an email address the sender knows, or has reason to know, belongs to a Washington resident and prohibits falsity or deception in email headers and subject lines. While CEMA was enacted in 1998, the law has recently come into focus as a result of the April 2025 decision in Brown v. Old Navy, LLC that expanded the scope of CEMA.

Since Brown v. Old Navy, LLC, lawsuits under CEMA have increased, with courts generally maintaining the expanded interpretation of CEMA’s scope. In a January 2026 ruling on the pending Ma v. Nike, Inc., the U.S. District Court for the Western District of Washington denied Nike’s motion to dismiss, holding that CEMA is not preempted by the federal CAN-SPAM Act and citing the decision in Brown v. Old Navy, LLC in holding that factual representations about the duration or availability of promotions fall within CEMA’s protections.

Violations of CEMA are enforceable under the Washington Consumer Protection Act, with statutory damages of the greater of $500 or the plaintiff’s actual damages.

Does CAN-SPAM Still Protect Email Marketers in Washington?

The federal Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM Act”) establishes comprehensive national standards for the transmission of commercial electronic mail. While the Supremacy Clause of the U.S. Constitution typically dictates that federal law will preempt inconsistent state laws, CAN-SPAM includes a specific savings clause that provides an exception for state laws that prohibit falsity or deception in commercial electronic mail. As CEMA is specifically designed to address and prevent such falsity and deception within commercial email communications, its core provisions are not preempted by CAN-SPAM and remain fully enforceable. This allows Washington to maintain stricter prohibitions against deceptive practices in commercial email than might otherwise be permitted under a blanket federal preemption.

Restrictions on Commercial Electronic Mail

CEMA defines a “commercial electronic mail message” as an email sent “for the purpose of promoting real property, goods, or services for sale or lease."

CEMA prohibits a person from initiating, conspiring with another to initiate, or assisting in the transmission of an email from a computer located in Washington or to an email address the sender knows, or has reason to know, belongs to a Washington resident that:

• Uses a third party’s internet domain without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or
• Contains false or misleading information in the subject line.

How Brown v. Old Navy Expanded Subject-Line Liability

In Brown v. Old Navy, LLC , the Washington Supreme Court significantly clarified and expanded what constitutes false or misleading information in an email subject line under CEMA. The Court ruled that the prohibition extends beyond misrepresenting the communication's nature to encompass any materially false or misleading statement. For example, the Court found a false sense of urgency was created when an email subject line claimed a 50 percent off sale was ending, but the promotion continued for several more days, thereby violating CEMA. Under CEMA, email subject lines must accurately reflect the true terms, duration, and availability of promotions and offers. Claims of urgency (e.g., “Last Chance!”, “Ending Soon!”) must correspond precisely to the actual timeline and conditions of the offer. Conversely, the Court affirmed that subjective opinions or permissible 'puffery,' such as 'Best Deals of the Year' or 'Unbeatable Savings,' are generally not considered false or misleading, provided they do not misrepresent objective facts about the offer.

Before Brown v. Old Navy, LLC, CEMA’s subject-line prohibition was generally interpreted as targeting deception about the “nature” of an email (for example, masking a marketing email as a transactional message, or using “RE:” to imply a reply). However, the Court held that CEMA reaches any materially false or misleading statement in a subject line, regardless of whether it misdescribes the email’s nature, so long as the statement would be material to recipients.

Key expansions clarified by Brown v. Old Navy, LLC

• Beyond the “nature” of the message: A subject line can violate CEMA even if it clearly signals marketing content. Any objectively inaccurate claim in the line can be actionable.
• Objective claims now squarely within scope: Assertions about price, discount amount, timing, duration, availability, eligibility, inventory, or shipping that are untrue when sent can be materially misleading.
• Urgency and scarcity claims are risky: The Court treated a manufactured sense of urgency in the subject line (“50% Off Ends Tonight” when the promotion continued for several days) as materially misleading. Timebound or scarcity messages must be accurate at the time the message is sent.
• Materiality centers on recipient impact: The benchmark is whether the misstatement in the subject line would matter to a reasonable recipient’s decision to open or engage with the message, not whether the entire email is deceptive.
• No safe harbor for “marketing norms”: Industry practices like rolling extensions, evergreen “ending soon” creatives, or dynamically refreshed offers do not excuse inaccuracies in the subject line.

Practical Implications for Subject Lines

• Temporal claims must be precise: “Ends tonight,” “Last chance,” “Today only,” and countdowns should be used only when the promotion truly ends as stated for the recipients targeted by that send.
• Quantitative claims must be accurate: “50% off,” “$20 off,” “Free shipping,” or “Only 5 left” must be factually correct for the products, time window, and audience segment addressed.
• Avoid misaligned dynamic content: If promotions may be extended or vary by region or channel, lock the subject line to what is true for that specific email mailing, or use non-temporal puffery.
• Coordinate with affiliates and vendors: Ensure third parties do not deploy subject lines that overstate urgency, discount depth, or availability. Contractual controls and pre-send review are important.
• Document the facts at send time: Maintain auditable records showing the offer terms, effective dates, and availability that support timebound or quantitative subject lines.

Violations and Enforcement

Any person who is injured by a violation of CEMA may bring a civil action to enjoin further violations and recover the greater of their actual damages or $500 for each violation. In any action, a court may increase the damages award up to three times the original amount if it finds that the defendant has engaged in a pattern or practice of violations.

If you have questions about your compliance with the Washington Commercial Electronic Mail Act, please contact one of the specialists in our Data Privacy and Security practice area.

^{* Special thanks to Summer Associate Eduardo Renteria for his contributions to this article.}

_{This content is made available for educational purposes only and to give you general information and a general understanding of the law, not to provide specific legal advice. By using this content, you understand there is no attorney-client relationship between you and the publisher. The content should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.}