The Washington Supreme Court has just handed down a decision significantly expanding the scope of its anti-spam law to now cover a wide array of false advertising claims relating specifically to commercial emails. The case, Brown v. Old Navy, has substantial implications for companies that use email for marketing to consumers in Washington state.
Washington enacted the Commercial Electronic Mail Act (“CEMA”) in 1998 to address email spam because in 1998 many consumers paid for internet access by the minute. Commercial emails that were disguised to look like personal emails, with subjects like “Hi” or “We need to talk,” caused consumers to waste minutes downloading these emails only to find that they were just commercial solicitations. CEMA thus 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.”
The plaintiff in Brown alleged that Old Navy sent emails to Washington consumers with false claims about sales in the subject line. Specifically, plaintiff accused Old Navy of sending an email announcing a promotional sale was ending even though the retailer continued to offer the promotion for days following the initial email. She argued that the second prong of CEMA, banning emails with false or misleading information in the subject line, should be read as applying to all false statements a commercial venture makes in the subject line of an email it sends out to consumers, including the Old Navy emails at issue.
This interpretation was rejected by a federal court in Chen v. Sur La Table, Inc., 655 F. Supp. 3d 1082 (W.D. Wash. 2023). Chen held that in the context of CEMA as a whole and its legislative history, the prohibition on false or misleading information in the subject line of an email referred to false or misleading information pertaining to the commercial nature or origin of an email only. In the Chen court’s view, the second prong of CEMA was not an all-purpose false advertising ban against any possible false or misleading statement made in the subject line of a commercial email.
The Washington Supreme Court, in a 5-4 decision, disagreed with Chen and held in Brown that the second prong of CEMA should be read as a broad false advertising prohibition that applies to all statements in the subject line of emails. The court interpreted the plain language of the second prong broadly and rejected any requirement to look at the context or legislative history of that language. The dissent argued that the majority erred in ignoring the context and legislative history when it construed the second prong of CEMA.
As a result of the Brown case, businesses that send commercial emails to residents in Washington State are now subject to statutory damages under CEMA if the subject line of an email includes any “false or misleading information.” The Washington Supreme Court made clear though that opinion, “puffery” and traditional “sales talk” remain legal and non-actionable under CEMA. Going forward, when reviewing advertisements for accuracy and legal compliance, businesses should be sure to check the subject line of marketing emails specifically. And, as always, businesses should make sure to include robust and well-crafted dispute resolution mechanisms for all consumers who opt into email marketing.
