On April 17, 2025, the Supreme Court of Washington ruled in Brown v. Old Navy1 that advertisers cannot send emails that contain any false or misleading information in the email subject line. This ruling expands the scope of Washington's anti-spam law known as the Commercial Electronic Mail Act (CEMA), which was passed in 1998 to address the influx of unsolicited, deceptive or misleading commercial emails received by Washington consumers. The court was faced with the question of whether CEMA (1) prohibits any false or misleading information in the subject line of a commercial email or (2) only prohibits false or misleading information that misrepresents the email's commercial nature. Ultimately, the court broadly interpreted CEMA as prohibiting any false or misleading information in the subject line of a commercial email.
The Case
In Brown v. Old Navy, consumers filed a class action lawsuit against retailer Old Navy, alleging that Old Navy sent marketing emails to consumers with subject lines containing false or misleading information about the duration of its promotions. According to the complaint, Old Navy sent emails advertising promotions using phrases such as "Today only" or "Three Days Only" in the subject line, when the promotion lasted longer than advertised or the item of sale had already been discounted for longer than advertised, to create a false sense of urgency to drive sales. In response, Old Navy argued that the U.S. District Court for the Western District of Washington previously held that CEMA only prohibits false or misleading information as to the commercial nature of the email (see Chen v. Sur La Table, Inc., 655 F. Supp. 3d 1082 (W.D. Wash. 2023)), and that the Supreme Court of Washington should follow suit.
In rejecting Old Navy's interpretation and broadly applying CEMA as prohibiting any false or misleading information in a commercial email subject line, the Supreme Court of Washington relied on the plain language of the statute prohibiting "false or misleading information in the subject line" of commercial emails. The court also emphasized that the Washington state legislature intended to regulate the truthfulness of email subject lines because the subject line is often one of the only parts of an email that a consumer can see before deciding to engage with the message or delete it. In explaining the type of language CEMA intended to regulate, the court distinguished puffery, which are subjective or hyperbolic phrases like "Best Deals Ever!" or "One-of-a-Kind Sale," from facts, such as the duration or availability of a promotion, its terms and nature, the cost of goods and other claims affecting consumer choice. CEMA, according to the court, only prohibits misrepresentations of fact, not puffery, in email subject lines, as facts can be substantiated, whereas puffery cannot.
In a 5-4 decision, the court disagreed with Chen and held that the second prong of CEMA should be read as a broad false advertising prohibition that applies to all statements in the subject line of emails. The court interpreted the plain language of the second prong broadly and rejected any requirement to look at the context or legislative history of that language. The court made clear, however, that opinion, "puffery" and traditional "sales talk" remain legal and non-actionable under CEMA.
Why It Matters
As a result of the Brown case, businesses that send commercial emails to residents in Washington State are now subject to statutory damages under CEMA if the subject line of an email includes any "false or misleading information." In the state of Washington, penalties for sending commercial emails with false or misleading information in the subject line to consumers can quickly add up under CEMA—$500 per violation or actual damages (whichever is greater), to be exact.
For advertisers and brands that believe their email marketing legal compliance is automated via their email marketing vendor, now is the time to reconsider that assumption. While many clients we speak with believe their emails are "good to go" because their email vendor has implemented "routine" compliance with the Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), unfortunately, that is not the case.
While CAN-SPAM expressly preempts state laws which regulate the use of commercial emails, an exception exists for state laws to prohibit material falsity or deception in any portion of a commercial email or information attached to such email. As a result, the state of Washington enacted CEMA, and many other states, including Georgia, California, Maryland and South Dakota, have enacted similar anti-spam laws.
By way of example, the California Anti-Spam Law2 prohibits unauthorized use of third-party domain names, the sending of commercial emails with falsified, misrepresented or forged header information and misleading subject lines that do not reflect the true content of the commercial email. The California Anti-Spam law creates a private right of action for recipients and allows recipients to seek monetary redress with damages up to $1,000 per email sent.
Before sending a commercial email to a consumer, it is important that you have considered compliance with both federal and state laws. If you haven't looked at or otherwise thought about your email marketing compliance in a while, it may be time for a checkup. Your Manatt Advertising, Marketing and Media team member is standing ready, willing and able to provide you with advice to reduce your risk for your commercial email marketing practices.
Footnotes
1. No. 102592-1 (Sup. Ct. Wash. Apr. 17, 2025).
2. Cal. Bus. & Prof. Code § 17529.5.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
