The Commercial Electronic Mail Act (CEMA) is a Washington State law that prohibits sending state residents a commercial email misrepresenting the sender’s identity. A commercial email promotes real property, goods, or services for sale or lease. A recent Washington Supreme Court opinion held that this prohibition includes the use of any false or misleading information in the subject line of a commercial email and is not limited to false or misleading information about the commercial nature of the message. Brown v. Old Navy, LLC, No. 102592-1 (Wash. 4/17/25).

The case arose when the plaintiffs sued Old Navy after allegedly receiving emails with false or misleading subject lines about the retailer’s promotions . The plaintiffs categorized four types of false and misleading emails from Old Navy:

1. Emails that announced offers available longer than stated in the subject line;
2. Emails that suggested an old offer was new;
3. Emails that suggested the end of an offer; and
4. Emails that stated a promotion extension.

For example, plaintiffs claimed that they received emails with subject lines including phrases like “today only” or “three days only” when sales or promotions lasted longer. The plaintiffs also pointed to emails from Old Navy about a 50% off promotion that would supposedly end that day, but continued in the following days. Plaintiffs argued that such emails violate CEMA because of false or misleading subject lines.

The applicable CEMA provision prohibits entities from sending commercial emails that “contain false or misleading information in the subject line.” RCW 19.190.020(1)(b). While plaintiffs argued that the provision refers to any information, Old Navy asserted that the prohibition is directed at statements in the subject line that mislead the recipient as to what the email is about. The Washington Supreme Court noted that the plain meaning of Subsection 1(b), and CEMA’s general truthfulness requirements, indicate that the statute applies to any information contained in an email subject line.

Old Navy also claimed that the plaintiffs’ interpretation of the subsection would punish Old Navy for “banal hyperbole.” According to the retailer, such puffery was not intended to be in CEMA’s scope. The court noted that though this issue was not within the scope of the narrow question in the case, typical puffery, including statements such as “Best Deal of the Year,” is not misrepresentation or false because “market conditions change such that a better sale is later available.” According to the court, mere puffery differs from representations of fact, such as “the duration or availability of a promotion, its terms and nature, the cost of goods, and other facts” that are important to Washington consumers when making decisions.

Though five justices signed the majority opinion, four others dissented. The dissent notes the antispam legislative intent and history behind CEMA, holding that the legislature was concerned about the “volume of commercial electronic mail being sent,” suggesting the narrower interpretation of Subsection 1(b) that Old Navy proposed. The dissent opinion points to the preceding provision of CEMA, which precludes transmitting an email that “[u]ses a third party’s internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message.” RCW 19.190.020(1)(a). According to the dissent, Subsection (1)(b) should “be read in harmony” with Subsection 1(a) and should be interpreted to address the prevention of sending emails that hide the email’s origin and promotional purpose. In support of its position, the dissent includes the example of the Washington Attorney General’s Office website, which directs consumers to “[c]arefully examine the body of the email message as it relates to the email’s subject line” and see if “it accurately describe[s] what is contained in the email” to determine whether the subject line would violate CEMA.

Companies can expect increased CEMA litigation due to this case. Those engaging in email marketing should be mindful of their subject line language. Statements about the nature of specific offers could be subject to increased scrutiny in Washington state. When choosing between general puffery and a more targeted subject about a specific offer, businesses may want to err on the more conservative side of the line (pun intended).