On April 17, the Washington Supreme Court held that RCW 19.190.020(1)(b) prohibits sending Washington residents commercial emails that contain any false or misleading information in the subject lines of such emails. In Brown v. Old Navy, LLC, the plaintiffs sued the retailer Old Navy after receiving emails with subject lines that they say contained false or misleading information regarding the duration of Old Navy’s promotions, violating Washington’s Commercial Electronic Mail Act (“CEMA”).
CEMA was enacted in 1998, during the internet’s dial-up era, to address an increasing number of consumer complaints about commercial electronic mail. While the Washington legislature has amended CEMA several times since its enactment, it has never revised RCW 19.190.020(1)(b).
CEMA prohibits sending Washington residents “a commercial electronic mail message” that misrepresents the sender’s identity (RCW 19.190.020(1)(a)), or contains false or misleading information in the subject line. (RCW 19.190.020(1)(b).
No person may initiate the transmission, conspire with another to initiate the transmission, or assist the transmission, of a commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident that:
(a) Uses a third party’s internet domain name without permission of the third party, or otherwise misrepresents or obscures any information in identifying the point of origin or the transmission path of a commercial electronic mail message; or
(b) Contains false or misleading information in the subject line.
A violation of CEMA’s email regulations is a per se violation of the Consumer Protection Act (“CPA”). CEMA sets a $500 penalty for sending Washington residents commercial emails that violate its regulations. Unlike the CPA, CEMA’s $500 penalty does not require a showing of actual damages. Under CEMA, the injury is receiving an email that violates its regulations.
Plaintiffs alleged that Old Navy violated RCW 19.190.020(1)(b) when it sent them emails that, for example, announced that a 50 percent off promotion was ending even though the retailer continued to offer the 50 percent off promotion in the days following the initial email and emails that announced time-limited promotions (e.g. “today only” or “three days only”) that were extended beyond the specified time limit.
Recognizing that CEMA sought to give consumers relief from commercial spam email by requiring accuracy and truthfulness in the subject lines of such emails, the Washington Supreme Court held that CEMA requires truthfulness in email subject lines, and that such truthfulness does not depend on what the rest of the email conveys.
The court went on to state that “mere puffery” in subject lines of emails would not violate RCW 19.190.020(1)(b) stating that “instances of mere puffery are not prohibited by subsection (1)(b). Mere puffery includes subjective statements, opinions, and hyperbole. Mere puffery is contrasted by representations of fact—like 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.”
Key Takeaway
Businesses must take extreme caution when sending commercial emails from computers in Washington and to WA residents and ensure that the subject lines do not contain false or misleading statements. While the court shut the door on that front, it certainly opened a window with its express approval of “mere puffery” – which can cover quite a lot of ground. Statements like “world’s greatest sale” will almost certainly be OK, while statements such as “Sale – Today Only” when the sale goes on tomorrow, will almost certainly be a violation of the law.
