A Washington State Supreme Court decision last spring that construed that state’s Commercial Electronic Mail Act (“CEMA”) to broadly prohibit any misleading information in retailers’ email subject lines has opened the floodgates to similar state spam claims. In the past six months, there have been eight putative class action complaints alleging that retailers’ misleading email subject lines violate CEMA, and more alleging similar claims under other state spam laws. Businesses face heightened exposure to liability for marketing practices that seek to convey a sense of urgency with respect to promotional timelines. This spate of litigation raises important questions about the scope and enforceability of state anti-spam laws, including whether such claims are preempted under the federal Controlling the Assault of Non–Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act”).  

Washington’s Commercial Electronic Mail Act

CEMA prohibits sending commercial electronic mail messages to Washington residents that contain “false or misleading information in the subject line.” RCW 19.190.020(1)(b). In April 2025, the Washington State Supreme Court clarified the scope of this provision in Brown v. Old Navy LLC, 4 Wash.3d 580 (2025). Consumers filed a putative class action lawsuit in federal district court alleging Old Navy violated CEMA by sending promotional emails with subject lines indicating that a promotion would end on a specific date, when in fact the promotion continued beyond that date. The district court certified to the state supreme court the question whether CEMA’s prohibition against “false or misleading information in the subject line” encompassed subject lines containing any false or misleading information, or whether the prohibition was limited to subject lines containing false or misleading information about the commercial nature of the email message.The Washington Supreme Court held that the statute applies to any false or misleading information in the subject line, regardless of whether it misleads consumers about the commercial nature of the message. Id. at 583. Following this decision, defendants filed a motion to dismiss arguing that plaintiffs’ claims are preempted. The issue is unlikely to be addressed by the district court because defendants subsequently filed a notice to withdraw their pending motion to dismiss and moved to compel arbitration. 

Consumer Class Actions under CEMA

Following Old Navy, multiple plaintiffs have pursued similar CEMA claims based on allegedly misleading email subject lines regarding promotional offers. Last month, plaintiffs filed separate class action lawsuits against Macy’s and Discount Tire, alleging that defendants sent marketing emails containing misleading subject lines regarding the duration or urgency of promotional offers. In the complaint against Macy’s, plaintiffs alleged that emails with subject lines such as “Open ASAP: up to 65% off ends tomorrow” and “Last chance! 40–60% off disappears tonight poof,” followed by similar emails advertising the same promotional offers days later, violated CEMA. Similarly, Discount Tire Co. allegedly violated CEMA by sending emails with subject lines like “Up to $160 OFF tires & wheels ends tonight!” while offering comparable discounts by email the following week. Other retailers face similar claims based on emails alleged to have falsely suggested limited-time offers. See Liss et al v. Skechers USA Inc, No. 3:25-cv-05861 (filed Sept. 22, 2025, W.D.Wash.); Ma v. Nike, Inc., No. 2:25-cv-01235 (filed May 29, 2025, W.D.Wash). These companies, like Old Navy, are defending the class actions by challenging CEMA’s constitutionality, arguing that it is expressly preempted by the CAN-SPAM Act. See e.g., Shahpur et al v. Ulta Beauty Inc., No. 2:25-cv-00284 (E.D.Wash.); Perkins v. Global Custom Commerce Inc. et al., No. 2:25-cv-01750 (W.D.Wash.). In Ulta Beauty, the district court prepared and sent a constitutional challenge certification to the Washington Attorney General. No judgment about the constitutionality of the statute has been made.

The CAN-SPAM Act and Preemption Precedent

The federal CAN-SPAM Act prohibits sending commercial email messages with deceptive subject headings, or with materially false or misleading header information. 15 U.S.C. § 7704. The statute supersedes any state law that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute “prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.” 15 U.S.C. § 7707.

Federal courts have addressed the scope of CAN-SPAM preemption in several cases, including one involving CEMA, though none since the Washington Supreme Court’s decision in Old Navy last spring. Two federal circuit courts have held that CAN-SPAM preempted state-law claims brought by plaintiffs. In Omega World Travel Inc. v. Mummagraphics Inc., 469 F.3d 348, 353 (4th Cir. 2006), the court held that CAN-SPAM preempted plaintiff’s claims under an Oklahoma anti-spam law for “immaterial errors” in unsolicited emails. The Fourth Circuit found that the “falsity or deception” exception to CAN-SPAM’s preemption provision referred to actions “in the vein of tort” and therefore precluded plaintiff’s state-law claims based on allegations about inaccurate email headers, such as using nonfunctional email addresses. In Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1064 (9th Cir. 2009), the Ninth Circuit interpreted the “falsity or deception” exception in 15 U.S.C. § 7707 narrowly, holding that the vague domain names defendant used to send emails, such as “CriminalJustice@VM.com” or “TradeIn@vm-mail.com” did not arise from “traditionally tortious or wrongful conduct” and thus plaintiffs’ CEMA claims based on those domain names were preempted.

However, analysis of post-Gordon decisions suggests that courts are distinguishing between immaterial misstatements or errors and materially deceptive practices, and are likely to hold that claims based on the latter are saved from preemption. For example, in Hypertouch, Inc. v. ValueClick, Inc., 192 Cal. App. 4th 805 (Cal. Ct. App. 2011), the court held that the state-law claims were not preempted by CAN-SPAM. In that case, the plaintiff brought claims under California’s state law which prohibits the transmission of any “unsolicited commercial e-mail advertisement” and certain practices such as sending an email containing falsified header information or misleading subject lines. Hypertouch alleged that numerous emails contained falsified header information that did not accurately reflect the identity of the sender or recipient of the email, that the subject lines contained statements about false promotional offers or gifts, and that the emails contained a third-party’s domain name without their consent. Id. at 815-16. Similarly, in Asis Internet Services v. Subscriberbase Inc., No. 09-3503-SC, 2010 WL 1267763 at *13 (N.D. Cal. Apr. 1, 2010), the district court found the plaintiff’s claims under California state law about misleading subject lines purporting to offer “free gifts” could be inherently deceptive and therefore were not preempted by CAN-SPAM. The court found that as long as plaintiffs can establish that defendants were responsible for making knowing and material misrepresentations based on “falsity or deception,” their claim is not preempted under CAN-SPAM. Id. at 941.

Implications for Clients and Businesses

There are 33 states with commercial email and/or spam-specific laws, although these vary in scope and enforceability. The recent wave of class action litigation under CEMA underscores the legal risks associated with marketing emails that contain subject lines that create a false sense of urgency or convey that a promotional offer for a reduced price will expire, particularly when the company intends to provide a similar offer soon thereafter. These emails might also violate the CAN-SPAM Act as well as the FTC Act. The FTC’s Deceptive Pricing Guides instruct against advertising a “‘limited’ offer which, in fact, is not limited.” 16 C.F.R. § 233.5. Although preemption arguments might be available, these broader risks suggest that companies would be well advised to evaluate their compliance with state laws regulating commercial email subject lines as well as prohibitions against unfair or deceptive acts or practices.