Beware of Your Email Marketing Practices: What You Should Know About Washington’s Commercial Electronic Mail Act  

Washington has seen a surge in putative class action lawsuits alleging violations of Washington’s Commercial Electronic Mail Act (CEMA), RCW 19.190.010, premised on allegedly false or misleading email subject lines.  Following the Washington Supreme Court’s April 2025 decision in Brown v. Old Navy,[1] companies that send emails with subject lines that create a sense of urgency or include promotional terms—for example, “Sale Ends Tonight” when the sale continues past the stated deadline—have been targeted. 

CEMA and Its Expanded Interpretation 

Enacted in 1998, CEMA prohibits sending commercial emails to Washington residents that: 

1. Misrepresent the sender’s identity, or 
2. Contain false or misleading information in the subject line. 

Historically, CEMA’s prohibition on “false or misleading” subject lines was understood as limited to misrepresentations about whether the message was a commercial advertisement or misrepresented information found in the body of the email.  But last April, this reading was rejected by the Washington Supreme Court in Brown.  In that case, the Washington Supreme Court ruled that: 

• CEMA prohibits any false or misleading factual statement in a subject line, not just statements about the commercial nature of the email; 
• Clarified that language in the body of the email does not cure a misleading subject line; and
• While puffery (“Best Deals of the Year”) is not actionable, “factual assertions”—including the duration or availability of a promotion, the terms of a sale, or pricing—must be accurate and substantiated. 

Misleading Marketing Emails Sent to Washington Residents Could Lead to Exposure

In the wake of Brown, plaintiffs have filed dozens of lawsuits challenging email subject lines with urgency‑based language and other factual claims about promotional offers. Plaintiffs are targeting email subject lines that contain the following: 

• False urgency claims such as “Ends today” or “Last Chance” when the promotion was extended or expected to continue;
• Misstatements regarding discounts such as overstated percentages or fictitious price reductions; and
• Subject lines inconsistent with promotional terms disclosed only in the body of the email.

Recent Decisions Have Constrained the Avenues to Limit CEMA Exposure

Washington federal district courts have recently rejected arguments that plaintiffs’ challenges to subject lines with false urgency claims and/or alleged misstatements about available discounts pursued under CEMA were pre-empted by the CAN-SPAM Act. See, e.g., Harrington v. Vineyard Vines, LLC, No. C25-1115, 2025 WL 3677479 (W.D. Wash. Dec. 18, 2025); Kempf v. FullBeauty Brands Operations, LLC, No. C25-1141 TSZ, 2026 WL 395677 (W.D. Wash. Feb. 12, 2026). 

Washington federal district courts have also held that CEMA does not violate the dormant Commerce Clause.  See, e.g., Washington v. Ulta Salon, Cosms. & Fragrance, Inc., No. 2:25-cv-00284-RLP, 2026 WL 571122 (E.D. Wash. Feb. 27, 2026); Agnew v. Macy’s Retail Holdings, LLC, No. 2:25-CV-02006-JHC, 2026 WL 764140 (W.D. Wash. Mar. 18, 2026). 

Most recently, in March 2026, the Western District of Washington determined that the plaintiff lacked Article III standing and remanded a putative class action back to Washington state court.[2]  See Nuri v. True Religion Apparel, No. 2:25-cv-00690-LK, 2026 WL 864886 (W.D. Wash. Mar. 30, 2026).

Efforts at Reform: HB 2274 Signed into Law

In response to the current wave of CEMA litigation, bills were introduced in both the Washington House and Senate to amend the statute.  One of these bills, HB 2274, passed both the House and Senate with broad support and was signed into law by Governor Ferugson on March 23, 2026.  This new law will be effective on June 11, 2026.

HB 2274 will decrease potential exposure for companies engaged in email marketing by reducing the statutory damages for email recipients from $500 to $100 per violation, or actual damages, whichever is greater.  The bill also amended CEMA so that liability attaches only when a subject line contains false or misleading information based on the sender’s “actual knowledge or knowledge fairly implied on the basis of objective circumstances.”  This knowledge requirement may further narrow the scope of possible claims.  These amendments, however, only govern newly filed lawsuits.

Best Practices for Email Marketing to Washington Residents

In light of these developments, companies that send marketing emails to Washington residents—especially retailers, e‑commerce companies, and subscription‑based businesses—should consider the following steps for compliance with CEMA:

1. Segment Washington Recipients

   Maintain technical capability to send modified subject lines or compliance‑reviewed content to Washington residents.

2. Ensure Subject Lines Are Factually Accurate

   Any factual information—sale dates, deadlines, discount levels, product availability—must be accurate at the time the email is sent and not contradicted by internal marketing plans.

3. Use Puffery Carefully

   Subjective, non‑verifiable statements, like “Best Sale Ever,” are generally permissible. Objective facts must be accurate.

4. Monitor Developments

   Stay abreast of evolving case law and potential changes to CEMA that may arise through judicial decisions.  HB 2274’s amendment to CEMA is widely viewed as a first step in reform during the short 2026 legislative session.  It is likely that there will be a more intense push for broader reform during the longer 2027 legislative session.   

5. Consult Counsel

   Companies should review their marketing and promotional email practices, implement subject‑line compliance protocols, and evaluate potential exposure if accused of non-compliance.

For More Information 

Stoel Rives’ lawyers are monitoring developments in this rapidly evolving area. Please contact the authors or your Stoel Rives relationship partner for guidance on compliance strategies or risk assessments. 

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[1] 4 Wn.3d 580, 567 P.3d 38 (2025).

[2] Similar questions regarding plaintiffs’ Article III standing have been raised sua sponte in Liss et al. v. Sketchers, No. 3:25-cv-05861-DGE (W.D. Wash.), Perdomo v. Fullbeauty, No. 3:25-cv-05844-TSZ (W.D. Wash.), and Devivo v. Sheex, No. 3:25-cv-05807-DGE (W.D. Wash.).