What’s In Your Subject Line? CEMA Underscores the Risk of Misleading Your Audience

The landscape of digital marketing compliance continues to evolve, with Washington state's Commercial Electronic Mail Act (CEMA) emerging as one of the most stringent regulations affecting both email and text message marketing. Recent court decisions have expanded the scope and application of this law, creating substantial legal exposure for businesses that fail to maintain strict compliance with its provisions.

What is CEMA?

Codified in Chapter 19.190 RCW, CEMA establishes stringent prohibitions on commercial electronic communications to protect consumers from deceptive and intrusive practices. The law applies to both emails and text messages, with recent judicial interpretations expanding its scope and enforcement risks for businesses.

With respect to email, CEMA explicitly prohibits commercial emails that contain false or misleading information in the subject line, or obscure the transmission path or point of origin, such as through the unauthorized use of third-party domain names.

CEMA also prohibits businesses from initiating or assisting in transmitting commercial text messages to Washington residents without prior consent. his applies to any cellular or pager number with text capability, and unlike the federal Telephone Consumer Protection Act (TCPA), CEMA liability extends to entities that “assist” in transmission, such as through referral programs.

The Brown v. Old Navy Email Ruling

On April 17, 2025, the Supreme Court of Washington issued a ruling that answered the following question: does CEMA prohibit any false or misleading information in the subject line of a commercial email, or does it only prohibit false or misleading information that obscures the commercial nature of the message?

The underlying case involved a class action lawsuit filed against retailer Old Navy, accusing it of sending marketing emails with subject lines containing false or misleading information about the duration of its promotions. According to the complaint, some of those emails used phrases such as "Today only" or "Three Days Only" in the subject line, when in fact the promotion lasted for a longer period, or the item had already been discounted for longer than advertised, creating a false sense of urgency to drive sales.

In its defense, Old Navy argued that CEMA only prohibits false or misleading information as to the commercial nature of the email and urged the Court to rule in accordance with Chen v. Sur La Table, Inc., a U.S. District Court case that supported Old Navy’s argument.

In a 5-4 decision, the court rejected Old Navy's interpretation and broadly applied CEMA as prohibiting any false or misleading information in a commercial email subject line. In doing so, the court relied on the plain language of the statute, which literally prohibits "false or misleading information in the subject line" of commercial emails. It also emphasized that the Washington state legislature intended to regulate the truthfulness of email subject lines because the subject line is often one of the only parts of an email that a consumer can see before deciding to engage with the message or delete it.

Falsity v. Puffery

In explaining the type of language CEMA intended to regulate, the Brown court distinguished puffery (subjective or hyperbolic phrases like "Best Deals Ever!" or "One-of-a-Kind Sale") from factual claims (such as the duration or availability of a promotion). CEMA, according to the court, only prohibits misrepresentations of fact, not puffery, in email subject lines, as facts can be substantiated, whereas puffery cannot.

CEMA's Application to Commercial Text Messages

While the Brown case highlights the CEMA risks associated with email marketing, businesses should be equally cognizant about CEMA's strict regulations regarding text message marketing. In 2003, the Washington legislature amended CEMA to address the growing issue of unsolicited commercial text messages. As RCW 19.190.060(1) states:

No person conducting business in the state may initiate or assist in the transmission of an electronic commercial text message to a telephone number assigned to a Washington resident for cellular telephone or pager service that is equipped with short message capability or any similar capability allowing the transmission of text messages.

The legislature explicitly declared this practice a violation of the Consumer Protection Act, establishing it as “an unfair or deceptive act in trade or commerce”

Tougher Than the TCPA?

Unlike the TCPA, which only holds the "sender" or "maker" of a text message liable for violations, CEMA's scope is significantly broader, as it applies not only to the party responsible for sending the messages but also to any parties that "assisted in their creation or transmission."

As discussed in prior articles, this broader "assistance" test has made CEMA one of the most dangerous laws for digital marketers operating in Washington state.

CEMA Violations - Consequences and Penalties

As class action attorneys have discovered, the penalties for CEMA violations can quickly accumulate. For both email and text messages, CEMA establishes statutory damages of $500 per violation or actual damages, whichever is greater. Considering that typical email or text marketing campaigns often target thousands or even millions of recipients, potential liability is virtually unlimited.

And it should be noted that Washington's CEMA is just one example of state-specific email marketing regulations. Other states, including Georgia, California, Maryland, and South Dakota, have enacted similar anti-spam laws, each with their own unique provisions. For instance, the California Anti-Spam Law prohibits unauthorized use of third-party domain names, falsified header information, and misleading subject lines, and includes a private right of action with damages up to $1,000 per email.

Avoiding CEMA Liability

In light of the fact that subject lines largely determine whether an email will be opened or deleted, many email marketers have adopted a strategy that can be summed up as “never let the truth get in the way of a good subject line.” While playing fast and loose with email subject lines might pay dividends in many cases, the Brown ruling makes it clear that there is also crippling downside, especially when the emails are sent the recipients are residents of Washington state.

The combination of broad statutory language, expansive judicial interpretation, and significant per-violation penalties makes CEMA a substantial legal risk that requires careful attention from businesses engaged in digital marketing. In light of this risk, before sending commercial emails, businesses should consider the following steps:

1. Review subject lines of promotional emails to ensure they contain no potentially misleading information, particularly regarding time-limited offers.
2. Consider implementing Washington-specific protocols, possibly including blocking Washington consumers from email and texting campaigns.
3. Consult with legal counsel to ensure compliance with the expanding interpretations of CEMA and similar state laws