Washington's anti-spam law covers any misrepresentations in subject line of commercial email

In re Brown v. Old Navy, LLC, 2025 WL 1132243, --- P.3d ----, No. 102592-1 (Wash. Apr. 17, 2025)

Deciding a certified question, the Washington Supreme Court held over dissent that the state’s anti-spam law covers all commercial emails with false or misleading information in their subject lines, not just false or misleading information about the commercial nature of the message. The majority reasoned that the statute’s language is plain: “No person may initiate the transmission ... of a commercial electronic mail message ... [to] a Washington resident that: ... (b) [c]ontains false or misleading information in the subject line.”

Plaintiffs alleged that Old Navy violated the law by sending them e-mails 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 e-mail.

Along with ordinary statutory interpretation principles, the majority reasoned, “[w]e construe remedial consumer protection statutes ... liberally in favor of the consumers they aim to protect.” But even without that, plain meaning settled the question: to violate this provision, “an e-mail subject line does not need to deceive consumers about the subject or purpose of the email—it merely needs to contain false or misleading information … even when the false or misleading information in the subject line does not deceive consumers about the advertising purpose or commercial nature of the e-mail.”

Old Navy argued that the legislature intended to prevent spammers from tricking people into opening spam, but not to create an “enhanced anti-fraud provision” that provides statutory damages only when deception is in the commercial e-mail’s subject line. The majority disagreed: targeting the header and subject lines made sense to fight spam because these are “the two pieces of information consumers first glean when faced with the choice of deleting a message or engaging with its content.” The legislature targeted a specific deceptive practice, and also made violation of the anti-spam law a per se violation of the general consumer protection statute. This is a categorically deceptive practice, as to which the legislature concluded that statutory damages were appropriate. “Accordingly, CEMA [the anti-spam law] does not require a showing of injury for statutory damages to be awarded because the injury is receiving the e-mail that violates CEMA. There is nothing absurd about CEMA’s focus on subject lines or CEMA’s allocation of statutory damages to falsity in the subject lines.”

Old Navy also argued that “banal hyperbole” like “Best Deals of the Year” could lead to liability if there was an end-of-the-year sale. But that was about what falsity/misleadingness meant, and puffery was the right doctrine to deal with it. “Promotions that state ‘Best Deals of the Year’ are not misrepresentations and do not communicate information that retroactively becomes false (and actionable) under CEMA because market conditions change such that a better sale is later available.”

A dissenting justice would have read the law as unambiguously narrower; it concluded that the legislature was concerned about the costs to consumers of having to open mail to figure out that it was commercial, and the examples cited focused on subject lines that were not clear that they were ads.