A recent decision by the Washington Supreme Court has raised the stakes for commercial email compliance under the Washington Consumer Electronic Mail Act (CEMA). This 5-4 ruling, issued on April 17, 2025, rejected narrower federal interpretations and established that any false or misleading information in a commercial email's subject lineviolates CEMA, regardless of whether that information conceals the email's commercial nature.
CEMA's Origins and Purpose
Washington's Commercial Electronic Mail Act was enacted in 1998 during the internet's dial-up era to address the growing volume of commercial emails at a time when internet access was comparatively slow and expensive, with consumers often paying by the minute or hour, only to spend it wading through a sea of spam.
CEMA prohibits sending Washington residents commercial electronic mail messages that either: (1) use a third-party domain without permission or misrepresents the point of origin; or (2) contain false or misleading information in the subject line.
CEMA establishes statutory damages of $500 per violation for sending Washington residents commercial emails that violate its regulations and does not require a showing of actual damages. Under CEMA, the injury is simply receiving an email that violates its regulations, which essentially transforms the statute into a virtual ATM for class action attorneys and professional plaintiffs.
CEMA defines a "commercial electronic mail message" as "an electronic mail message sent for the purpose of promoting real property, goods, or services for sale or lease." Over the past few years, several companies learned the hard way that CEMA liability also encompasses text messages, and applies not only to the party responsible for sending the messages but also to any other parties that assisted in their creation or transmission.
Unpacking Brown v. Old Navy
The plaintiffs filed a class action lawsuit against Old Navy after receiving emails with subject lines containing allegedly false or misleading information about promotion durations to create a "false sense of urgency" to induce purchases. The plaintiffs categorized Old Navy's misleading emails into four distinct types:
1. Emails announcing offers available longer than stated in the subject line (e.g., "today only" promotions that continued for days.
2. Emails falsely suggesting an old offer was new.
3. Emails falsely suggesting a continuing offer was ending.
4. Emails falsely stating a promotion was extended.
The case reached the Washington Supreme Court through a certified question from the U.S. District Court seeking clarification on the scope of CEMA, namely: "Does CEMA prohibit the transmission of a commercial email with a subject line containing any false or misleading information, or is the prohibition limited to subject lines containing false or misleading information about the commercial nature of the email message?" Naturally, the plaintiffs and defendant had a difference of opinion as to the appropriate answer.
Competing Interpretations of CEMA
Old Navy advocated for a narrow interpretation consistent with federal court precedent in Chen v. Sur La Table, Inc., which held that subsection (1)(b) "specifically prohibits false and misleading information as to the nature of the email, i.e. that the email is an advertisement." This interpretation would align with the federal CAN-SPAM Act, which prohibits only false and misleading information about the commercial nature of emails.
The plaintiffs unsurprisingly argued for a broad interpretation, contending that CEMA prohibits any false or misleading informationin commercial email subject lines, regardless of whether the misrepresentation concerns the email's commercial nature.
Analysis and Decision
The Washington Supreme Court, in a 5-4 decision, adopted the plaintiffs' broad interpretation. Justice González, writing for the majority, concluded that "the statute prohibits the use of any false or misleading information in the subject line of a commercial e-mail" based largely on the plain language of the CEMA statute, which simply states that no person may send a commercial electronic mail message that "contains false or misleading information in the subject line."
The Puffery Exception: Crucially, the Washington Supreme Court established an important limitation to its broad interpretation: the "mere puffery" exception. A fundamental concept of advertising law, “mere puffery” consists of promotional statements that are subjective, opinion-based, and generally incapable of objective verification. The Federal Trade Commission defines puffery as marketing claims “that ordinary consumers do not take seriously.”
Likewise, the Brown court defined "mere puffery" as including: (1) subjective statements, opinions, and hyperbole or (2) subjective, unverifiable claims about a product or service, contrasting puffery with actionable representations of fact, such as:
- The duration or availability of a promotion
- A promotion's terms and nature
- The cost of goods
- Other facts Washington residents would depend on in making consumer decisions
What Does CEMA Prohibit Under the Brown Ruling?
Following Brown, CEMA prohibits commercial emails to Washington residents with subject lines containing any false or misleading information, including:
- Factual Misrepresentations: These include duration claims (subject lines stating "today only" or "three days only" when promotions continue beyond specified timeframes), availability claims (that sales or promotions are ending when they continue); pricing information (false discount percentages or misleading cost representations) and product specifications (factual misstatements about goods or services being promoted).
- Temporal Deceptions: These include false urgency (creating artificial time pressure through misleading deadline claims), extension misrepresentations (falsely characterizing ongoing promotions as "extended") and new vs. existing offers (mischaracterizing recurring promotions as new or exclusive).
CEMA is Far From Unique
Several states have enacted email anti-spam statutes that include private rights of action and statutory damages similar to Washington’s CEMA, namely the following:
- California (Business and Professions Code Sections 17529.5 and 17529.8): California maintains one of the most robust anti-spam regulatory frameworks, featuring multiple statutes with private enforcement mechanisms that enable plaintiffs to recover liquidated damages of $1,000 per email.
- Oklahoma (Title 15, Section 776.7): Oklahoma’s Unsolicited Commercial Electronic Messages Act provides comprehensive private enforcement mechanisms with differentiated damages for various plaintiff categories. The statute grants standing to “any person whose property or person is injured by reason of a violation,” and grants individual recipients statutory damages equivalent to the lesser of $10 per email or $25,000 per day, along with attorneys fees and costs.
- Arkansas (Chapter 88, Subchapter 6): Arkansas’s Unsolicited Commercial and Sexually Explicit Electronic Mail Prevention Act establishes private enforcement with specific damage calculations and includes a private right of action and tiered statutory damages similar to the Oklahoma email statute.
These states represent the minority of jurisdictions that provide individual consumers with direct enforcement mechanisms against email spam violations, contrasting with the federal CAN-SPAM Act’s limitation of enforcement to government agencies and ISPs.
How CEMA Will Affect Marketers
The Washington Supreme Court's decision in Brown v. Old Navy established the broadest interpretation of subject line truthfulness requirements in the nation. By rejecting federal precedent favoring narrow interpretations and embracing a comprehensive approach to subject line accuracy, the court has created both significant compliance obligations and substantial litigation exposure for businesses engaged in email marketing to Washington residents.
And the risk is not limited to email, as CEMA’s broad definition of a "commercial electronic mail message" has been held to apply to the senders of marketing texts along with any other parties that assisted in their creation or transmission.
While CEMA may represent a clear and present danger for marketers targeting Washington state, it is far from the only one.California’s email statute provides the most expansive private enforcement with the highest per-email statutory damages ($1,000) and comprehensive coverage of misleading subject lines and header information.Class action attorneys and professional plaintiffs alike have started taking advantage of the generous statutory damages granted by these state email laws, so marketers would do well to refrain from overstating the benefits of offers to the point where the CEMA line is crossed.
