On April 17, 2025, the Washington Supreme Court issued a decision in Brown v. Old Navy, LLC, clarifying how the state’s Commercial Electronic Mail Act (CEMA) should be interpreted. (beneschlaw.com)
The Court held that any false or misleading information in the subject line of a commercial email—no matter how small—is a violation. (beneschlaw.com)
Previously, some retailers (like Old Navy) argued that only subject lines that conceal the nature of the email as a promotion should be actionable. The Court rejected that narrower interpretation. (beneschlaw.com)
Statutory Penalties
Under CEMA, the penalty is $500 per violation. (beneschlaw.com)
Because each email to each recipient could be a separate violation, liability can escalate very quickly. (Mondaq)
Importantly, actual harm or damages need not be proven. The court found that “receiving a violative email” is enough to trigger the penalty. (beneschlaw.com)
What Counts as a Violation
The Court drew a distinction: objective false or misleading factual statements in a subject line are actionable, but “mere puffery” (e.g., “Best Sale of the Year”) is not necessarily a violation. (beneschlaw.com)
Examples of subject lines that could be risky: time-limited offers like “Ends today” or “Last chance” when in fact the promotion is routinely extended. (washingtonretail.org)
Liability & Litigation Risk
According to legal experts, there are already dozens of class‑action lawsuits citing this ruling, targeting both big national retailers and smaller businesses. (beneschlaw.com)
The Washington Retail Association warns that this could expose companies to very large liabilities, especially if they send frequent marketing emails to many Washington residents. (washingtonretail.org)
Some plaintiffs argue that their exposure could run into the billions or even trillions in aggregated penalties, depending on volume. (beneschlaw.com)
Retailers’ Response & Challenges
Major retailers—including Ulta and Home Depot—are challenging the law. They argue it’s unconstitutional and preempted by the federal CAN-SPAM Act. (Law360)
The Washington Retail Association is advising its members to audit subject lines, avoid misleading timing language, and train marketing teams on compliance. (washingtonretail.org)
State Law Context
Washington’s anti-spam law (CEMA, RCW 19.190) prohibits not only false or misleading subject lines, but also false sender information and unauthorized use of third-party domains. (Washington State Attorney General)
The law applies to commercial emails sent to Washington residents or from computers in Washington, if the sender knows (or reasonably should know) the recipients are Washington-based. (Washington State Attorney General)
Case Studies & Scenarios (How This Ruling Affects Retailers)
National Retailer with Washington Customers
A large retailer sends weekly promotional emails like “Flash Sale Ends Tonight!” to customers in Washington. If the sale is extended (even once), every Washington recipient could potentially claim a $500 violation each time — exposing the retailer to massive class action risk.
Frequent Campaigns via National Email List
A chain uses a unified email marketing list (including Washington addresses). Because CEMA doesn’t require actual harm, the mere fact of sending a slightly misleading subject line can be enough for plaintiffs to seek statutory damages—even without proof that recipients clicked through or made purchases.
Small Business with Limited Legal Resources
A small Washington-based boutique may not have had a compliance legal team. After the ruling, the business may need to scrub all subject lines, retrain staff, or shift to more conservative language to avoid CEMA liability, which could significantly raise its marketing compliance costs.
Analysis & Commentary
Broad Interpretation Raises Risk
The ruling marks a significant expansion in how Washington’s anti-spam law is interpreted. By allowing any false or misleading statement—not just deception about the commercial nature—the court greatly broadens exposure for marketers. (beneschlaw.com)
Strict Liability Nature
Because the law doesn’t require proof of damage, and the penalty is per email, it’s effectively strict liability. This makes it especially dangerous for email-heavy marketing campaigns aimed at Washington residents. (Bloomberg Law)
High Stakes for Retailers
The potential liability is massive. Even a relatively modest email list, if used frequently, could generate huge statutory damages in aggregate. (beneschlaw.com)
Regulatory vs. Litigation Risk
The decision is not just about regulatory compliance. Because CEMA provides a private right of action, class-action attorneys are already mobilizing. (Bloomberg Law)
Marketing Practice Changes Needed
Retailers should conduct a subject-line audit: review all past and planned email campaign subject lines for factual accuracy. (washingtonretail.org)
Avoid using limited-time offer language unless the offer truly ends as stated. (Bloomberg Law)
Marketing teams need training on the distinction between permissible “puffery” and problematic factual claims. (washingtonretail.org)
Constitutional & Preemption Arguments
Some major retailers argue that this interpretation of state law is preempted by the federal CAN-SPAM Act, which generally disallows states from imposing stricter regulation. (Law360)
There’s also concern about interstate commerce: Washington’s law could affect emails sent from outside the state, raising constitutional (Dormant Commerce Clause) issues. (washingtonretail.org)
Strategic Urgency
For email marketers, this is a wake-up call: what may have been considered “marketing exaggeration” could now trigger statutory penalties. Retailers operating nationally need to assess their Washington exposure seriously.
Bottom Line
What changed: Washington’s Supreme Court has taken a very broad view of anti-spam law, saying any false or misleading statement in a commercial email’s subject line violates state law. (beneschlaw.com)
Why it matters for retailers: Potential liability is huge ($500 per violative email per recipient), and a wave of lawsuits is already underway. (beneschlaw.com)
What retailers should do: Audit subject lines, avoid misleading urgency phrases, get legal and compliance teams involved, and train marketers. (washingtonretail.org)
Good question. Here are some case‑study–style scenarios and expert commentary (“comments”) on how Washington’s new spam‑email ruling could impact retailers, plus risks, strategies, and business implications.
Case Studies: Retailers & Washington’s Spam Email Ruling
Case Study 1: National Retailer with Washington Customers
Scenario: A major national retailer (e.g., an apparel chain or e-commerce store) sends regular promotional emails, including “flash sales,” “ends today,” and “limited‑time offer,” to its full email list — which includes a significant number of customers living in Washington State.
Risk Exposed by Ruling: Under the Brown v. Old Navy decision, even if the sale is routinely extended, subject lines like “Sale Ends Tonight!” may be considered false or misleading — a CEMA violation. Each email to each Washington recipient could count as a separate violation.
Potential Liability: At $ 500 per violation, if the retailer sent 100,000 campaign emails to Washington-based customers with a misleading subject line, that could theoretically lead to tens of millions of dollars in liability, depending on class size.
Business Impact: This exposure forces the retailer to rethink its email marketing strategy, especially campaign wording, and potentially limit or segment subject lines for Washington-based subscribers.
Case Study 2: Mid‑Sized Local Retail Chain
Scenario: A regional retail chain with stores in Washington and other states uses a shared marketing team but does not segment its email list by geography. It often uses subject lines such as “Today Only – 50% Off Everything.”
Risk Exposed by Ruling: If these “today only” offers are extended on another day, even for simplicity or error, those Washington recipients may file CEMA claims.
Mitigation Options: The chain could implement a geographic-based email list (tagging addresses by state) to ensure compliance when crafting subject lines. It may also need to revise campaign protocols — e.g., define “sale end” dates rigidly, remove ambiguous urgency, and include disclaimers.
Business Trade-Offs: While segmentation and more cautious language reduce legal risk, they may also reduce email marketing performance (open rate, urgency-based purchases). The chain must balance compliance with sales efficacy.
Case Study 3: Boutique / Small Online Retailer
Scenario: A small e-commerce retailer headquartered outside Washington sends weekly newsletters and promotional emails to customers in all 50 states, including Washington. They use phrases like “Last Chance!” or “Pre-Sale Expires Midnight.”
Risk Exposed by Ruling: Given the strict liability nature of the ruling (false/misleading subject lines alone can trigger statutory damages), even a single campaign misstep could lead to class-action exposure.
Action Plan:
Review and audit all subject lines for campaigns that go to Washington residents to ensure factual accuracy.
Avoid or carefully qualify “time-limited” or “last-chance” language unless it’s verifiably true.
Add compliance reviews of email campaigns as part of marketing procedures, especially for promotions.
Consult legal counsel to evaluate risk vs. return for subject-line phrasing, weighted against potential fines.
Cost-Benefit Dynamics: For a small business, legal risk might outweigh marginal gains from urgency-based subject lines, pushing the firm to adopt more conservative marketing language.
Commentary & Strategic Insight
Liability Risk Is Very Real
The ruling potentially turns subject-line marketing — a core lever for email engagement — into a legal risk, especially in Washington.
With penalties of $ 500 per email, exposure could balloon quickly in class-action contexts, especially for large national retailers.
Strict-Liability vs. Marketing Creativity
Retailers must now rethink what “creative license” means: exaggerated urgency or vague deadlines could be legally perilous.
Marketing teams will likely need to work closely with legal/compliance to redesign campaigns and subject-line playbooks for Washington recipients.
Compliance Is No Longer Optional
Segmentation by geography is going to be more than a “nice-to-have” — it may be necessary to comply with CEMA when crafting certain email headlines.
Firms may need to build subject-line reviews into campaign approval workflows, or automate compliance checks.
Risk Management Over Growth
Email marketers who rely on high-open, high-urgency messaging may have to weigh growth metrics against possible legal exposure. That could shift priorities toward long-term brand trust rather than short-term campaign performance.
Some firms will likely carry more legal / compliance burden in their marketing organizations to manage this risk.
Regulatory Pressure & Legal Uncertainty
There’s emerging legal risk from plaintiffs’ attorneys, as class-actions may become more common now that the court clarified this interpretation.
Meanwhile, national retailers could seek legislative or regulatory relief, or argue the law conflicts with federal CAN-SPAM provisions. (Some are already making that argument.)
State-by-state variation (Washington vs. others) adds complexity for national or multi-state retailers, pushing email marketers to fragment or condition marketing based on geography.
Business Strategy Implication
Firms with large Washington-based customer bases need to prioritize reviews and possibly invest in compliance infrastructure (legal review, campaign auditing, mailing list management).
Many retailers may default to more cautious subject lines (“Limited Time – Check It Out” rather than “Ends Tonight!”) or opt into double-check processes.
Long-term, this could lead to fewer urgency-based email pushes for Washington subscribers, potentially reducing short-term sales but lowering legal risk.
Bottom Line
Washington’s ruling marks a major shift: even small misstatements or misleading urgency in subject lines could be legally actionable.
Retailers must act: review past and future campaigns, segment by geography, tighten compliance, and train marketing teams on safe language.
Strategic balancing: they need to balance the marketing value of urgency-based subject lines with the high legal risk under CEMA.
Watch this space: more litigation is likely, and case volume could surge — especially for firms that heavily market via email.
