Washington State Increases Risks for False or Misleading Email Subject Lines

The Supreme Court of Washington has clarified the scope of prohibited practices under the Washington Consumer Electronic Mail Act (CEMA). The Court stated that CEMA bans advertisers from sending any false or misleading information in the subject line of a commercial email, not just false or misleading details about the nature of the communication. 

Plaintiffs have filed multiple lawsuits seeking to expand traditionally limited liability for the content of commercial emails.

In this case, the plaintiffs claimed that the defendant impermissibly sent emails with false or misleading information, violating CEMA. The plaintiffs stated that the defendant, for example, announced that a 50% off promotion was ending even though the retailer continued to offer the promotion in the days following the initial e-mail. Other instances included e-mails that announced time-limited promotions that were extended beyond the specified time frame.

CEMA prohibits sending a commercial e-mail that contains false or misleading information in the subject line. The defendant argued that a prior case said this law prohibits false and misleading information as to the nature of the email, i.e. that the email is an advertisement.

This is the same standard that federal courts have applied to claims under the Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 (CANSPAM), which has been interpreted to prohibit only false and misleading information about the nature of the email (i.e., that it is commercial in nature).

The court ultimately found that a subject line does not need to deceive consumers about the subject or purpose of the email but rather merely needs to contain false or misleading information.

The court was careful to limit the scope of its ruling. Promotions that are statements of opinion rather than fact are not considered misrepresentations actionable under CEMA, explicitly stating that a 'Best Deals of the Year' promotion would not be actionable. The court also indicated that subjective, unverifiable claims about a product or service are mere puffery and that such puffery is not prohibited by [CEMA].

Since this decision, plaintiffs have filed several putative class actions under CEMA alleging the use of false or misleading information in subject lines. Most of these cite subject lines that allegedly create false urgency regarding the duration of promotions or highlight specific discounts available only on limited categories of products. 

Implications

Businesses advertising to Washington state residents face the reality that CEMA sets statutory damages of $500 for sending Washington residents commercial e-mails that violate its regulations. CEMA’s $500 statutory damages do not require a showing of actual damages and are incurred per recipient.

For advertisers outside of Washington state, this ruling serves as a reminder that state laws also impact Internet advertising, and the rules governing Internet advertising are becoming increasingly restrictive and comprehensive.