Last week, the Washington State Supreme Court issued a ruling which is anticipated to have significant implications for going-forward compliance with the Washington email law, the Commercial Electronic Mail Act ("CEMA").
What are the compliance obligations under the Washington email marketing law?
As long-time readers of this blog know, state and federal email statutes generally regulate the kinds of representations that can be made in an email's subject and from lines. The Washington Supreme Court was recently tasked with determining the scope of CEMA's subject line regulation, which states, in pertinent part, that "[n]o person may initiate . . . a commercial electronic mail message . . . [to] a Washington resident that . . . [c]ontains false or misleading information in the subject line." Specifically, the Court sought to clarify whether this restriction prohibits false or misleading information about the commercial nature of an email message (i.e., what the email is about), or whether it also prohibits any false or misleading information in the subject line itself.
The Court ultimately concluded that the statute prohibits the latter, and that subject lines which contain any false or misleading information violate CEMA. To reach that conclusion, the Court observed that CEMA's plain language requires "evaluating the subject line alone," because the statute does not regulate the body (in notable contrast to other state email statutes, such as California's Business and Professions Code § 17529.5). Thus, the Court held that an email can violate the subject line provision "even when the false or misleading information . . . does not deceive consumers about the advertising purpose or commercial nature of the [email]."
The Court summarized its conclusion by stating that "CEMA protects consumers by requiring that commercial e-mails communicate honestly about the terms of a given promotion or sale in the subject line." While it went out of its way to clarify that "puffery" or "subjective, unverifiable claims about a product or service" would likely not be actionable subject line claims, the Court ultimately found that CEMA prohibits sending state residents commercial email messages that contain any false or misleading information in their subject lines.
What does the Washington email ruling meaning for your business?
CEMA sets a $500 penalty for sending commercial email messages that violate the statute. As a result, potential liability for non-compliance can accrue quickly for those email marketing campaigns that include Washington State recipients. The Washington Supreme Court's ruling, and its tightening of the restrictions applicable to what may be included in an email's subject line, should underscore the continuing evolution of the email marketing regulatory environment. The rules governing email marketing compliance are constantly changing. As such, email marketing companies are advised to hire experienced counsel to ensure that they comply with CEMA, CAN-SPAM, and other applicable federal and state regulations.
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