Washington State's CEMA prohibits the use of any false or misleading information in the subject line of a commercial e-mail
- Peter Schneider
- Jun 30
- 4 min read
Washington State's Commercial Electronic Mail Act doesn't just apply to text messages, but can also apply to emails.
It is a law that doesn't get enough use: “No person may initiate the transmission . . . of a commercial electronic mail message . . . [to] a Washington resident that: . . . (b) [c]ontains false or misleading information in the subject line.”
Recently the Washington State Supreme Court was asked if the statute in RCW Chapter 19.190 prohibits any false or misleading information in email subject lines or only false or misleading information about the commercial nature of the message and they concluded:
the statute prohibits the use of any false or misleading information in the subject line of a commercial e-mail.
The case was Brown v Old Navy LLC and the genesis of the case were emails Old Navy sent announcing that a 50% off promotion was ending even though the retailer continued to offer the 50 percent off promotion in the days following the initial e-mail. Other examples include e-mails that falsely created a sense of urgency by announcing time-limited promotions (e.g. “today only” or “three days only”) when the discount extended beyond the specified time limit.
The plaintiffs categorized the false and deceptive emails into four different types, 1) emails that announced offers that were available for longer than the time stated in the subject line, 2) e-mails that falsely suggested an old offer was new, 3) e-mails that falsely suggested an offer was ending, and 4) e-mails that falsely stated a promotion was extended.
How did the case get to the Washington State Supreme Court?
This lawsuit originated in the Western District of Washington federal court, but a dispute over the interpretation of state law led the federal court to certify a question about CEMA to the state supreme court.
A patron saint of email spammers had recently held CEMA only prohibited false and misleading information as to the nature of the email, i.e. that the email is an advertisement. in Chen v. Sur La Table, Inc., 655 F. Supp. 3d 1082, 1092 (W.D. Wash. 2023), and the Brown plaintiffs pushed for the Washington State Supreme Court to clarify if CEMA's prohibitions on false and deceptive subject lines was this narrow.
Does RCW 19.190.020(1)(b) prohibit the transmission of a commercial email with a subject line containing any false or misleading information, or is the prohibition limited to subject lines containing false or misleading information about the commercial nature of the email message?
What the Washington State Supreme Court held
In WSSC noted that in Washington, individuals and entities like Old Navy cannot send a commercial e-mail that “[c]ontains false or misleading information in the subject line.” RCW 19.190.020(1)(b) and a prior WSSC case suggested that commercial e-mails containing false or misleading subject lines “such as “Hi There!,” “Information Request,” and “Your Business Records”’” probably violate RCW 19.190.020(1)(b). State v. Heckel, 143 Wn.2d 824, 24 P.3d 404, 2001 Wash. LEXIS 388. The Heckle court of appeals found that email subject lines "enticing the recipient to believe that the message might be from a friend or acquaintance or business contact . . . rather than a commercial advertisement” are prohibited.
The upshot is “[s]pammers must use an accurate, nonmisleading subject line, and they must not manipulate the transmission path to disguise the origin of their commercial messages” and the WSSC rejected the notion that CEMA isn't limited to “deception about . . . what the email is about.”
To violate subsection (1)(b), an e-mail subject line does not need to deceive consumers about the subject or purpose of the email—it merely needs to contain false or misleading information. This means that a commercial e-mail violates subsection (1)(b) even when the false or misleading information in the subject line does not deceive consumers about the advertising purpose or commercial nature of the e-mail.
Is all false and deceptive content prohibited?
The courts have long allowed "puffery" in advertising. Generally advertisers are allowed to say things like "best deals of the year" and "the best coffee in the world" and "the most amazing pizza ever" because these are “mere statements of opinion, not of fact”.
Puffery is a term used to describe exaggerated or subjective claims made in advertising or promotion that are not meant to be taken literally. It's essentially a form of hyperbole or opinion that a reasonable person would not interpret as a factual statement.
Note that the Brown plaintiffs were bringing suit for objective statements of fact: “today only” or “three days only” when there was no such time constraint. “[S]ubjective, unverifiable claims about a product or service are ‘mere puffery’ and cannot give rise to a false advertising claim.”
Why is this ruling important?
A violation of CEMA’s e-mail regulations is a per se violation of the Consumer Protection Act (CPA). That means it automatically satisfies all five elements of a CPA claim.
to prevail in a private CPA action … a plaintiff must establish five distinct elements: (1) unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her business or property; (5) causation.
A CEMA plaintiff can recover reasonable attorney fees and trebled actual damages via the CPA, but most junk email/junk text plaintiffs will be after CEMA's $500 statutory damages per violation that don't require a showing of actual damages.
What this means to you
If you are a Washington State resident receiving commercialized emails with objectively false or deceptive subject lines, you should consult with an attorney who can bring a claim on your behalf.
The State has outsourced enforcement of these laws to the public, so if you don't help enforce the law, it encourages the proliferation of more and more false and deceptive advertising.
Got a Case Like This?
If you’ve had similar problems with telemarketers, debt collectors, bankruptcy-related harassment, or even general legal related issues, we might research and feature your story in a future blog post. Email your situation or legal filing to peter@nwdebtresolution.com or nathen@nwdebtresolution.com.
Are telemarketers bothering you in Washington or Oregon?
I handle TCPA lawsuits in Washington State and Oregon, and may be able to help.
📞 Call: 206-800-6000 / 971-800-6000
📧 Email: peter@nwdebtresolution.com
Note: The opinions in this blog are mine (Peter Schneider) and do not count as legal advice. If you're thinking of suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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