If you’ve been seeing Instagram ads from plaintiff’s lawyers looking to sue email senders on behalf of Washington residents, Brown v. Old Navy1 and Aaland v. CRST Home Solutions2 are why. Both cases were decided in 2025, and together they finally answered questions CEMA has left open since it was passed in 2003.
The Exposure Has Always Been There
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.3 A violation is a per se violation4 of Washington’s Consumer Protection Act, carrying statutory damages of $500 per message, with no requirement to prove actual harm.5 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 message’s commercial nature. That interpretive position is now gone.
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 question6 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.7
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.8 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.”9[5]
The plaintiffs in Brown alleged subject lines announcing promotions as about to end 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: 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 a business’s growth or prosperity falls within CEMA’s scope.[6]
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. 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.
Your CEMA Analysis May Be Built on the Wrong Foundation
The most immediate concern 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.
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.
Footnotes
- Brown v. Old Navy, LLC, 567 P.3d 38, 44 (Wash. 2025). ↩︎
- Aaland v. CRST Home Solutions, 575 P.3d 1279 (Wash. Ct. App. 2025). ↩︎
- RCW 19.190.020(1). ↩︎
- A “per se violation” means that nothing else has to be proven with regard to the violation in question. ↩︎
- 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 , 567 P.3d at 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, 567 P.3d 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.
About the Author
Mickey is a Consultant & Attorney with over 28 years of experience in Email Deliverability & Privacy Law. He has a strong background in email authentication infrastructure (SPF, DKIM, DMARC), ISP and mailbox provider relations, anti-spam policy and compliance, CAN-SPAM and state anti-spam law gained through overseeing the Abuse & Compliance team at Salesforce Marketing Cloud, originating the ISP relations role at Informz (now part of Higher Logic), and working in the fight against spam since 1997. He holds a B.A. in Government, a B.S. in Computer Information Systems, and a J.D. from the University of Houston Law Center. He is a certified CIPP/US professional and a certified CIPM professional.
