For more than 25 years, Washingtonians have had consumer protection from, among other laws, the Commercial Electronic Mail Act. The law was created in 1998 to protect Washingtonians from deceptive marketing practices by retailers through emails and text messages. It prohibits the sending of emails that “contain false or misleading information in the subject line.”
But the state Supreme Court’s 2025 expansive interpretation of that law has put some retailers at great risk of financially crippling class action lawsuits. A proposed bill tweaking the wording of the law could be a potential fix.
Under the law, if a recipient of a promotional email deems the subject line to be deceptive or false, the recipient of the email can file a complaint against the retailer. The retailer could be fined $500 per email, which could result in millions of dollars.
The purpose of an email subject line is to let the recipient know what the email or text is about. In advertising, it works to alert potential shoppers to bargains or sales.
But a lawsuit brought against the retailer Old Navy that made its way to the state Supreme Court has changed the game. Old Navy argued that CEMA prohibits subject lines that mislead consumers only about the content or purpose of the email. The court rejected that and interpreted the law more broadly. It ruled that the law bans marketing emails sent to Washington residents that contain any false or misleading information in the subject line, not just information pertaining to the content of the email.
In Brown v. Old Navy, the plaintiffs challenged a series of promotional emails that conveyed a sense of urgency, suggesting a sale would “end today” or “expire soon”— even though it was extended.
Since the Brown v. Old Navy decision in April, more than 80 class action lawsuits have been filed under CEMA. Before the decision there were eight subject-line lawsuits filed since 1998.
“The way the new cases are playing out is they are really rewarding people who are not injured,” said Meegan Brooks, an attorney who represents the retail association. “The idea (of the proposed bill) is not to take away the ability of people who are actually injured to sue for misleading subject lines.”
House Bill 2274 would narrow the broad interpretation of the law.
“We’re looking at language to tighten it up,” said Rep. Larry Springer, D-Kirkland, himself a former retailer for more than 40 years. “People should have the opportunity to go after deceptive advertisers. But going after them in general or simply because you can, that’s a recipe for businesses to say ‘why am I in business.’ ”
While the bill has much merit, legislators must make sure consumers are protected from unscrupulous and deceptive tactics by retailers, especially in a competitive market. HB 2274, now in the House’s Consumer Protection and Business Committee, would do just that.
