Scope of CEMA’s Truthfulness Requirement: Prohibition on False or Misleading Subject Lines in Commercial Emails

Introduction

Brown v. Old Navy, LLC (No. 102592-1, Apr. 17, 2025) is a certified-question appeal from the United States District Court for the Western District of Washington. Plaintiffs Roxann Brown and Michelle Smith are Washington residents who allege that Old Navy sent them commercial emails with subject lines containing false or misleading information about the duration and timing of sales promotions, in violation of Washington’s “Commercial Electronic Mail Act” (CEMA), chapter 19.190 RCW. The federal district court asked the Washington Supreme Court to resolve a question of state statutory interpretation: does RCW 19.190.020(1)(b) prohibit any false or misleading statement in a commercial email subject line, or only false or misleading statements that conceal the commercial nature of the message?

Summary of the Judgment

By a 5–4 majority, the Washington Supreme Court held that RCW 19.190.020(1)(b) forbids any false or misleading information in the subject line of a commercial email sent to a Washington resident. It rejected Old Navy’s narrower reading—which would limit the prohibition to misrepresentations about the fact that the email was a commercial advertisement—and found that the plain statutory language, context, and remedial consumer-protection principles support a broad interpretation. The court declined to find the phrase ambiguous or to read in limiting words absent clear legislative language. It also ruled that “mere puffery”—vague, subjective marketing opinion—falls outside the ban, but that objective misstatements of fact (for example, “50% off until midnight” when in fact the sale continued) are prohibited in a subject line and carry a statutory $500 per-email penalty under CEMA, irrespective of actual damages.

Analysis

Precedents Cited

• State v. Heckel, 143 Wn.2d 824 (2001): Held that subject lines such as “Hi There!” or “Your Business Records” likely violate CEMA, and described subsection (1)(b) as imposing a “truthfulness requirement” in the header of a commercial email.
• Heckel (Court of Appeals), 122 Wn. App. 60 (2004): Noted that only the subject line (not the body) is regulated, but indicated that misleading subject lines must be judged on their face.
• Chen v. Sur La Table, Inc., 655 F. Supp. 3d 1082 (W.D. Wash. 2023): Interpreted RCW 19.190.020(1)(b) narrowly, concluding it prohibits only false or misleading statements as to the nature of the email (i.e., representing the email as non-advertising).
• Jametsky v. Olsen, 179 Wn.2d 756 (2014): Remedial consumer-protection statutes must be construed liberally in favor of consumers.
• Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516 (2010): Plain meaning of a statute “is to be discerned from the ordinary meaning of the language, the context, related provisions, and the statutory scheme as a whole.”

Legal Reasoning

1. Plain Language
   RCW 19.190.020(1)(b) unambiguously prohibits sending a “commercial electronic mail message” that “contains false or misleading information in the subject line.” The court observed that the statutory definition of “commercial electronic mail message” (RCW 19.190.010(2)) limits the scope to promotional emails, but does not cabin subsection (1)(b)’s truthfulness requirement to misstatements regarding the commercial nature of the email.
2. Statutory Context
   Reading subsections (1)(a) and (1)(b) together shows a focus on two distinct ways spam can mislead: (a) disguising the sender or transmission path, and (b) including false or misleading subject-line information. Nothing in the preamble or definitions suggests a legislative intent to restrict subsection (1)(b) to “is this an advertisement?” disclaimers.
3. No Ambiguity
   Because the phrase “false or misleading information in the subject line” has a clear, grammatically plain meaning, the court declined to resort to legislative history or canons of construction. It held the statute is not ambiguous, despite the fact that other interpretations could be imaginable.
4. Remedial Purpose
   CEMA was enacted to curb the volume and cost of commercial spam. The court noted the legislature’s concern with users paying by time or minute to download unwanted messages, and it concluded the legislature chose a precise, targeted remedy: mandate accuracy in the email header so that recipients can quickly triage incoming mail.
5. Mere Puffery Exception
   The court distinguished objective factual misstatements (e.g., “sale ends tonight”) from “mere puffery”—vague subjective claims (“best deals of the year”) that cannot be proven false. Puffery is not actionable under subsection (1)(b).

Impact

• Advertisers and retailers must ensure that subject lines do not contain any objective misstatements of fact, not just that they clearly identify themselves as promotions.
• Per email statutory damages of $500 under CEMA can be recovered without proof of actual harm, a potent deterrent against misleading subject lines.
• The decision may spur compliance programs and heightened legal review of email campaigns, particularly time-limited offers and urgency language.
• Future litigation may test the line between actionable factual misstatements and nonactionable puffery, but objective terms stating dates, percentages, or deadlines will be scrutinized.
• This broad reading contrasts with other jurisdictions that limit anti-spam laws to “what is this email?” disclosures, signaling Washington’s distinct consumer-protection stance in the digital context.

Complex Concepts Simplified

• Subject Line – The first line you see in your inbox before opening an email.
• Commercial Electronic Mail Message – Any email sent to promote goods or services.
• Per Se CPA Violation – A violation of CEMA automatically also violates Washington’s Consumer Protection Act (CPA), so consumers do not need to prove separate unfair or deceptive conduct.
• Statutory Damages – A set amount ($500 per email) that can be awarded without proof of actual financial loss.
• Mere Puffery – Broad, subjective advertising claims (e.g., “greatest sale ever!”) that a reasonable recipient does not take as literal facts.
• Plain Meaning Rule – If statutory language is clear, courts must apply it as written, without adding or omitting words.

Conclusion

Brown v. Old Navy marks a significant expansion of Washington’s anti-spam law by reading RCW 19.190.020(1)(b) to forbid any objective false or misleading statement in a commercial email’s subject line. The decision underscores the legislature’s commitment to protecting consumers and internet‐service providers from the time, bandwidth, and attention costs of deceptive email headers. Going forward, marketers must carefully vet subject-line content—beyond labeling messages “Advertisement”—to ensure factual accuracy every time they broadcast a promotional email into Washington inboxes.