The Washington Supreme Court has ruled that emails sent to residents with false or misleading subject lines are in violation of the state’s Commercial Electronic Mail Act (CEMA). This decision, which interprets the law more broadly than many retailers had hoped, has significant implications for marketers. In a narrow 5-4 decision, the Court emphasized that any deceptive information in an email’s subject line contravenes the 1998 law designed to protect Washingtonians from unpermitted or deceptive emails.
The ruling arose from a class-action lawsuit against Old Navy, filed by two women, including a resident of Pierce County. The lawsuit alleged that Old Navy’s email subject lines misrepresented the duration of promotions to create a misleading sense of urgency. An example cited was a subject line reading, “No joke! $12.50 JEANS (today only),” which, according to the plaintiffs, misrepresented the sale’s duration.
Old Navy, in its defense, denied any practice of using deceptive email subject lines and argued that CEMA only prohibits subject lines that conceal an email’s commercial nature. The case sought clarification from the Washington Supreme Court on CEMA’s scope after the U.S. District Court for Western Washington paused the litigation to await the state court’s interpretation.
Despite Old Navy’s hopes for a narrower interpretation based on a recent federal ruling, the state Supreme Court concluded that the plain language of CEMA prohibits any false or misleading information in subject lines. Justice Steven González, in the majority opinion, stated that CEMA prohibits misleading information, regardless of whether it disguises the email’s commercial purpose.
Justice Barbara Madsen, authoring the dissent, argued that the statute should only apply to subject lines concealing the email’s commercial nature, highlighting the legislative intent to protect consumers from spam. However, the majority opinion prevailed, emphasizing that subject lines containing facts about promotions, terms, and product costs must be accurate to avoid violating CEMA.
The ruling is being closely monitored by the state’s Attorney General’s Office, retailers, and legal experts. The Attorney General’s Office welcomed the decision, affirming its commitment to protecting consumers from deceptive practices. Meanwhile, legal representatives for The Retail Litigation Center, Inc., and the Washington Retail Association expressed concerns about potential legal exposure for businesses following this interpretation.
Under CEMA, violators face penalties of $500 per violation, even without proof of actual damages. The lawsuit in federal court seeks class-action status, statutory damages, and an injunction to prevent Old Navy from allegedly continuing misleading email practices. The proposed class would include all Washington residents who received emails with allegedly false subject lines within four years prior to the lawsuit’s filing in April 2023.