By Irina Toland & Parna Mehrbani
Businesses that send commercial electronic messages to Washington residents continue to face significant risk of liability under Washington’s Commercial Electronic Mail Act (CEMA), despite recently enacted amendments. Although amendments narrow certain avenues of liability, businesses remain exposed to litigation risk and statutory damages, making compliance with CEMA essential.
What Is CEMA?
CEMA, enacted in 1998, prohibits sending Washington residents commercial emails with “false or misleading” information in their subject lines. In 2025, the Washington Supreme Court held in Brown v. Old Navy, LLC that CEMA broadly prohibits the use of any false or misleading information in the subject line of a commercial email, not just false or misleading information regarding the email’s commercial nature. For example, a subject line advertising a time-limited promotion could violate CEMA if the promotion is then extended.
Following the Brown decision, nearly 200 class action lawsuits have been filed in Washington against national retailers and consumer brands. The lawsuits allege that companies sent marketing emails with misleading subject lines to more than 1,000 Washington recipients. For example, a 2025 class action against an athletic brand alleged that the company sent dozens of commercial emails to Washington residents with subject lines that falsely claimed that discounts offered would expire at a certain time. The plaintiffs claimed these subject lines violated CEMA by creating “a false sense of urgency” and misleading consumers into making purchases.
These cases are lucrative because CEMA provided $500 in statutory damages for each allegedly deceptive email per recipient, with courts authorized to triple those damages. Prevailing plaintiffs also may recover their attorney fees and costs.
In response to the surge in litigation against advertisers using these common promotional practices, the Washington Legislature enacted significant amendments to CEMA via House Bill 2274 (HB 2274), which took effect on June 11, 2026.
Amendments Provide Protections but Significant Exposure Remains
HB 2274 attempts to preserve protections against genuinely deceptive marketing practices while also protecting businesses from challenges to traditional marketing practices. While HB 2274 made the following changes to CEMA, the risks associated with violations remain significant:
- Knowledge Requirement: The use of a false or misleading subject line must be based on the person’s actual knowledge or knowledge “fairly implied on the basis of objective circumstances.”
- Statutory Damages: For lawsuits filed after June 11, 2026, per-recipient statutory damages are reduced to $100 per violation, or actual damages, whichever is greater, even if the allegedly unlawful emails were sent before that date.
Risks
The broad interpretation of what constitutes a prohibited subject line under CEMA exposes businesses to potential liability for subject lines containing representations about the duration or availability of a promotion, its terms and nature, and the cost of goods.
- Statutory Damages: CEMA damages are automatic and no proof of injury is required. A court may increase damages up to three times more, and prevailing plaintiffs may also recover attorney’s fees and costs.
- Class Actions: Businesses face substantial exposure to class action litigation. Because each noncompliant commercial email sent to a Washington resident is a separate violation, even a single marketing campaign could result in substantial statutory damages with potential liability of $100 per recipient. Beyond Washington, increases in litigation under similar state anti-spam statutes have been seen in California, Florida, Indiana, Maryland, and other states.
This client alert provides general information and does not constitute legal advice. If you have any questions regarding this update or would like advice regarding your specific circumstances, please contact your primary Tonkon Torp attorney or Parna Mehrbani.
