Washington’s Spam Email Ruling Means Retailers Should Be Careful

The Washington Supreme Court earlier this year made it unlawful for a business to knowingly send a commercial email to a Washington resident that “contains false or misleading information in the subject line.”

Seven months after the ruling in Brown v. Old Navy LLC, a wave of class actions are citing this provision of the state’s Commercial Electronic Mail Act, or CEMA. As a result, retailers should take steps to reduce exposure to such lawsuits while monitoring the ongoing cases.

The case began in 2023, when two Washington consumers accused Old Navy of spamming them with emails containing false or misleading information in their subject lines. Their class action alleged that the retailer routinely extended sales past the advertised date and, because the sales didn’t end as advertised, the subject lines violated CEMA.

Old Navy urged the Washington Supreme Court to follow a federal court’s ruling that CEMA “specifically prohibits false and misleading information as to the nature of the email, i.e. that the email is an advertisement.” But a narrowly divided court took a more expansive view, holding that CEMA “prohibits sending Washington residents commercial e-mails that contain any false or misleading information in the subject lines of such e-mails.”

Since the April 17 ruling, we’ve seen an increase in lawsuits alleging that a broad range of retailers sent emails that violate CEMA. Like Brown v. Old Navy, the complaints generally allege, among other things, that retailers created a false sense of urgency by sending emails whose subject lines suggested that a sale or offer would end on a specific date when it would actually be extended.

What makes these lawsuits so attractive to plaintiffs’ attorneys? CEMA provides a private right of action and statutory damages of $500 per email without the need for a plaintiff to prove actual damages, which would be difficult). Under Washington’s Consumer Protection Act, a court may award treble damages, allowing plaintiffs to seek up to $1,500 per violation.

Depending on the number of emails a retailer sends to Washington residents, those numbers can quickly add up.

Reducing Risk

Retailers looking for guidance on what subject lines may violate CEMA are unlikely to find clear answers. The Washington Supreme Court was simply asked to opine on CEMA’s scope—it didn’t address the subject lines the Brown v. Old Navy plaintiffs had cited in their complaint.

However, the allegations in pending complaints indicate what types of subject lines seem to present the lowest-hanging fruit for plaintiffs’ attorneys.

Retailers generally should avoid sending emails with express claims about the end dates of sales in the subject lines unless they are absolutely certain the sales will end as advertised. If the retailer later extends a sale, a plaintiff could argue that the subject lines were misleading in violation of CEMA and that they’re entitled to statutory damages.

Although the pending complaints largely focus on the timing of sales, any statement that could be viewed as misleading is subject to challenge.

For example, a pending complaint against a major retailer alleges that a subject line advertising a “Buy 1 Get 1 Free” sale was misleading, because the retailer increased the price of the first item to recoup the price of the second one.

And a complaint filed this month against another retailer alleges that subject lines advertising discounts were misleading because the retailer “never or almost never offers or sells its products at their list price.” These cases show that brands should carefully review all objective claims about sales.

The Washington Supreme Court suggested that, unlike factual statements, “mere puffery” such as hyperbole or other vague or subjective statements that can’t be proven true or false, doesn’t give rise to a CEMA claim. This may provide retailers some flexibility on how to build excitement for their sales without as much risk.

Still, they should work with their marketing lawyers on assessing risk, as the line between a factual statement and puffery can be very thin.

While the lawsuits are pending, retailers should proceed with caution and keep a close eye on developments in these cases. Everyone likes a sale, but a company that isn’t careful with how it advertises one could end up paying a high price in the end.

The case is Brown v. Old Navy, LLC, Wash., No. 102592-1, decided 4/17/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Gonzalo E. Mon is a partner in Kelley Drye’s advertising and marketing law practice.

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