A recent Washington Supreme Court ruling has expanded how the state’s Commercial Electronic Mail Act (CEMA) applies to promotional emails and their subject lines, creating new compliance risks for brands. Marketers need to understand the implications and adjust strategies now to stay both effective and compliant.

Why This Matters

The court ruled that CEMA prohibits all false or misleading information in an email subject line, not just information that masks the commercial nature of the message. This broad interpretation came in Brown v. Old Navy LLC, and it carries significant implications for how brands write promotional subject lines. Violations of Washington’s CEMA come with steep consequences: a minimum $500 penalty per violation, and they also qualify as per se violations of the state Consumer Protection Act.

Other states including California, Georgia, Kansas, and Maryland, have also adopted laws like CEMA. This means marketers need to think beyond just federal CAN-SPAM compliance and pay attention to state-level regulations as well.

Subject Lines Under Scrutiny

Historically, Washington courts have flagged subject lines that obscure an email’s commercial purpose, such as “Hi There,” “Information Request,” or “Your Business Records.”

Now, under this latest decision, subject lines that misrepresent the duration or availability of promotions may also be considered misleading. For example, “Today Only” (if the promotion runs longer) or “Three Days Only” (if it isn’t limited to that window) could be violations. Even subjective or hyperbolic statements like “Best Deals of the Year” may raise red flags if they contain specific claims that can be interpreted as misleading.

How Brands Should Respond

To help mitigate potential compliance issues, marketers should:

• Avoid disguising commercial intent. Make sure subject lines clearly signal when an email is promotional.
• Be precise about promotions. Use “Today Only” or “Last Day” only if it’s 100% accurate.
• Review hyperbolic claims. Ensure they are not misleading when paired with concrete details.
• Work closely with your legal team. Confirm that practices align with both federal and state laws.

The Bottom Line

This ruling shows that subject lines are more than just marketing; they’re a legal responsibility. By prioritizing accuracy and planning strategically, brands can create subject lines that both engage customers and stay fully compliant.

Listrak will continue monitoring developments like this to keep your brand ahead of legal, industry, and consumer shifts.

The information outlined herein is for informational purposes only and is not legal advice. Your brand is responsible for ensuring compliance with all applicable laws. We recommend reviewing these updates with your legal team.