Enacted in 1998, Washington's Commercial Electronic Mail Act ("Washington Email Statute") was aimed at curtailing consumers' receipt of commercial email at a time when: (1) consumers had limited internet access; and (2) internet service providers typically charged for time spent accessing the internet. Despite its noble purpose, Washington's Email Statute now is being used to target legitimate companies that send email without any nefarious intent. Below, we briefly discuss the increase in litigation around Washington's Email Statute, proposed legislation to curtail this litigation, and the implications for email marketers.
Washington Email Statute Battleground
Washington's regulation prohibits, among other things, sending commercial email that contains false or misleading information in the message subject lines. In April 2025, Washington's Supreme Court ruled that Washington's Email Statute prohibits sending commercial email containing subject lines with any false or misleading information. Following that decision, the amount of lawsuits filed against companies alleging violations of the law exploded in number. Earlier this month, the Washington Retail Association, along with other interested groups, introduced a bill to amend Washington's Email Statute ("Bill"). For a violation to occur, the Bill seeks to amend the law to require that the: (1) sender has actual or constructive knowledge that the applicable email subject lines are likely to mislead recipients; (2) false or misleading information in the subject lines is material; and (3) email recipients actually relied on this false or misleading information.
Why Should You Care About Washington's Email Statute?
Until the Bill's fate is determined, Washington's Email Statute is a strict liability law. Coupled with the ruling discussed above, this means that companies that send commercial email to Washington State consumers are liable under the law for any technical inaccuracy in their email subject lines. In addition, consumers need not show that they were harmed in any way as a result of the false information contained in email subject lines for them to be violative. Simply stated, the mere receipt of email containing subject lines with false or misleading information violates Washington's Email Statute, triggering statutory penalties of $500 per email. Typically, Washington Email Statute cases are brought as class actions, which can be extremely costly for email marketers to defend, especially if found liable.
Businesses sending commercial email to Washington State consumers are advised to hire experienced counsel to ensure that they comply with Washington's Email Statute, and other applicable federal and state laws.
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