Antitrust Law Daily Wrap Up, ADVERTISING—Wash. Sup. Ct.: Commercial Electronic Mail Act clear and unambiguous, (Apr 22, 2025)

By Donielle Tigay Stutland, J.D.

Washington statute prohibits the use of any false or misleading information in the subject line of a commercial e-mail.

The Washington Supreme Court found that the state’s Commercial Electronic Mail Act (CEMA) prohibits any false or misleading information in the subject line of a commercial email sent to Washington residents, not just misrepresentations about the email’s commercial nature. The court was asked to opine on the question of whether the CEMA prohibits 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, in a suit brought by consumers against Old Navy related to the retailer’s promotional emails. The consumers allege that the retailer was sending commercial emails with subject lines containing false or misleading information about the duration or nature of sales promotions in violation of the statute. The retailer argued that the statute only applies to misrepresentations about an email’s commercial nature. The court found the plain language of the statute was clear and unambiguous and that the statute prohibits any false or misleading information in the subject line of a commercial email (Brown v. Old Navy, LLC, No. 102592-1 (Wash. Sup.Ct. Apr. 17, 2025)).

Two consumers brought a lawsuit against the retailer Old Navy after receiving e-mails with subject lines that they allege contained false or misleading information regarding the duration of Old Navy’s promotions, in violation of Washington state’s “Commercial Electronic Mail Act” (CEMA). CEMA prohibits sending commercial e-mails that contain false or misleading information in subject lines. CEMA was enacted in 1998, during which time consumers paid by the minute for internet access, initially to address solicitation emails that appeared to not be from commercial businesses. The statute prohibits anyone from sending a commercial email to a Washington resident that (1) uses a third-party’s internet domain without permission or otherwise disguises the origin of an email, or (2) “contains false or misleading information in the subject line.” Additionally, a violation of CEMA’s e-mail regulations is a per se violation of the Consumer Protection Act (CPA). While the CPA broadly outlaws “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce,” RCW 19.86.020, CEMA distinctly outlaws sending commercial e-mails that contain false or misleading information in subject lines.

The consumers allege that Old Navy violated RCW 19.190.020(1)(b) by sending them e-mails that contained false or misleading information about the duration of sales promotions, for example, an email announced that a 50 percent 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 announced time-limited promotions (e.g. “today only” or “three days only”) that were extended beyond the specified time limit. The consumers contend that Old Navy used false or misleading information in the subject lines to get consumers to open the e-mails and “make purchases based on a false sense of urgency.”

The case originated in the U.S. District Court for the Western District of Washington, which requested the following question be addressed by the Washington Supreme Court: Does section 19.190.020(1)(b) of the CEMA 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?

Plain meaning. The court began its analysis by reviewing the plain meaning of 19.190.020(1)(b). The consumers argue that under the plain language of subsection (1)(b), a commercial email may not contain false or misleading information in the subject line. The retailer argues that read in context of other provisions of CEMA and the CPA, subsection (1)(b) prohibits false or misleading information only about the commercial nature of the commercial e-mail. The court rejected the retailer’s interpretation, noting that, “CEMA sought to give consumers relief from commercial spam e-mail by requiring accuracy and truthfulness in the subject lines of such e-mails. The legislature sought to achieve this objective by targeting an e-mail’s header and subject lines: the two pieces of information consumers first glean when faced with the choice of deleting a message or engaging with its content.”

The court concluded that “RCW 19.190.020(1)(b) is not ambiguous. In Washington, “[n]o person may [send]... a commercial electronic mail message... that:... (b) [c]ontains false or misleading information in the subject line.” RCW 19.190.020(1). This prohibition is not restricted to false or misleading information about the commercial nature of the e-mail.”

Additionally, the court noted that “Because we hold that subsection (1)(b) is not ambiguous, we will not review pertinent legislative history to determine the legislature’s intent. The legislative intent underlying subsection (1)(b) is demonstrated by the provision’s plain meaning.”

The court also reviewed relevant case law and determined that it also did not support the retailer’s position about the construction of the statute.

Puffery. Finally, the court addressed Old Navy’s contention that the consumers’ “interpretation of subsection (1)(b) cannot be correct because such an interpretation would mean that commercial entities like Old Navy” would “be susceptible to lawsuit—legitimate or not—with multi-million- or multi-billion-dollar exposure.” An example offered by Old Navy was the use of language such as “Best Deals of the Year,” but then suggested that if senders knew that “they might have excess inventory at the end of the year and might offer that inventory at a steep discount,” then every single e-mail recipient would be entitled to $500 “regardless of whether a single recipient believed this to be the best sale of the year or not.”

In response, the court clarified that “mere puffery”—subjective statements, opinions, or hyperbole (e.g., “Best Deals of the Year”)—would not actionable under CEMA. The court stressed that, “promotions that state “Best Deals of the Year” are not misrepresentations and do not communicate information that retroactively becomes false (and actionable) under CEMA because market conditions change such that a better sale is later available.” Representations that constitute “mere statements of opinion, not of fact,” are generally not actionable.

Dissent. In a dissenting opinion, Judge Madsen argued that the plain language of the statute, the stated legislative intent and history, and state and federal case law dictated that only those emails with subject lines concealing the e-mail’s commercial purpose would be violations of the statute.

The Case is No. 102592-1.

Judge: González, J.

Attorneys: Beth Ellen Terrell (Terrell Marshall Law Group PLLC) for Roxann Brown and Michelle Smith. Andrew Steven Decarlow (Morgan, Lewis & Bockius LLP) for Old Navy, LLC, Old Navy [Apparel], LLC, Old Navy Holdings, LLC, GPS Services, Inc. and The Gap, Inc.

Companies: Old Navy, LLC; Old Navy [Apparel], LLC; Old Navy Holdings, LLC; GPS Services, Inc.; The Gap, Inc.

Cases: Advertising ConsumerProtection StateUnfairTradePractices WashingtonNews