Washington courts finally interpreted a couple of vital parts of the state’s Commercial Electronic Mail Act (CEMA) in 2025, and plaintiff’s firms have already taken notice. I was prompted to write this because of ads targeting the email subscribers of large brands that have suddenly started circulating on social media, advertising claims of up to $500 per deceptive email under Washington law. These ads are a direct response to what these courts held.
The Statute
CEMA prohibits sending Washington residents commercial electronic mail messages that contain false or misleading information in the subject line, or that misrepresent the sender’s identity.1 A violation is a per se violation of Washington’s Consumer Protection Act (CPA), carrying statutory damages of $500 per message, with no requirement to prove actual harm.2 For programs sending at scale, that kind of exposure adds up quickly.
Since CEMA’s enactment in 1998, federal courts have generally read the statute narrowly, treating the subject-line prohibition as covering only information that disguises the commercial nature of the message. That interpretive position is now gone. And separately, those same courts had read the definition of “commercial” more narrowly than Washington courts are now prepared to accept.
Brown v. Old Navy: Any False Information in the Subject Line
The Washington Supreme Court answered a certified question3 from the federal district court for the Western District of Washington: Does RCW 19.190.020(1)(b) prohibit any false or misleading information in an email subject line, or only false or misleading information about the commercial nature of the message?
The court’s answer was unambiguous. CEMA prohibits any false or misleading information in the subject line of a commercial email. The court declined to import limiting language that the legislature never included, holding that the statute means what it says.4
The court did leave one meaningful boundary. “Mere puffery” is not actionable. “Puffery” is generally considered to be subjective, unverifiable claims that aren’t really meant to be taken literally.5 Representations of fact are not, and the court was specific about what falls into that category: “the duration or availability of a promotion, its terms and nature, the cost of goods, and other facts Washington residents would depend on in making their consumer decisions.”6[5]
The facts of the case illustrate the practical scope of that holding. The plaintiffs alleged subject lines announcing promotions that were ending when they were not, time-limited offers that extended beyond the stated limit, and representations that old offers were actually new ones. Those are the kinds of claims the court identified as actionable.
Aaland v. CRST Home Solutions: A Broader Definition of “Commercial”
The Washington Court of Appeals also addressed what qualifies as a “commercial electronic text message” under RCW 19.190.010(3). The court held that the definition is not limited to messages that attempt to sell something directly to the recipient. Any message sent to contribute to the growth or prosperity of a business falls within CEMA’s scope.[6]
That holding has implications beyond the specific facts of the case. If your organization sends unsolicited electronic communications to Washington residents for purposes other than direct promotion, and those communications advance your business interests, they may qualify as commercial messages under CEMA. The key point is that Washington courts are reading “commercial” more broadly than federal courts had previously suggested, and they are doing so independently of federal interpretations of the statute.
What Changes for Your Program
The most immediate concern for email marketers is the accuracy of subject lines for promotional claims. The holding in Brown makes factual representations about the duration and availability of promotions directly actionable. A subject line announcing a sale that ends tonight but which continues tomorrow is now problematic under CEMA. Review any promotional email copy that uses time-bounded or availability-bounded language, and ensure your extension practices account for that exposure.
The broader concern is the definition of “commercial” itself. Washington courts are now reading that term more expansively than federal courts had suggested, and they are doing so on plain language grounds without deference to prior federal interpretations. If your CEMA compliance analysis has rested on federal district court decisions, it is worth revisiting with Washington-specific legal counsel.
Footnotes
- RCW 19.190.020(1). ↩︎
- RCW 19.190.040(1); Wright v. Lyft, Inc., 406 P. 3d 1149 (Wash. 2017). ↩︎
- Certifying questions of state law is a legal procedure that allows federal courts to obtain definitive answers from state courts on unsettled issues of state law that arise in federal legal proceedings. ↩︎
- Brown v. Old Navy, LLC, 567 P.3d 38, 44 (Wash. 2025). ↩︎
- Examples: “The Jetson Galaxy: The best flying car in the Milky Way” would be puffery. “Has 50% fewer calories and double the caffine” is not puffery. Basically, you’re looking for pure hype. ↩︎
- Brown, at 47. ↩︎
This post is for informational purposes only and does not constitute legal advice. CEMA compliance analysis depends on the specific facts of your email program. For guidance on how these decisions affect your organization, contact competent legal counsel.
