Washington Email Marketing Climate Has Changed! – Advertising, Marketing & Branding

Last week, the Washington State Supreme Court issued a ruling which is anticipated to have significant
implications for going-forward compliance with the Washington email
law, the Commercial Electronic Mail Act (“CEMA”).

What are the compliance obligations under the Washington email
marketing law?

As long-time readers of this blog know, state and federal email
statutes generally regulate the kinds of representations that can
be made in an email’s subject and from lines. The Washington
Supreme Court was recently tasked with determining the scope of
CEMA’s subject line regulation, which states, in pertinent
part, that “[n]o person may initiate . . . a commercial
electronic mail message . . . [to] a Washington resident that . . .
[c]ontains false or misleading information in the subject
line.” Specifically, the Court sought to clarify whether this
restriction prohibits false or misleading information about the
commercial nature of an email message (i.e., what the email is
about), or whether it also prohibits any false or misleading
information in the subject line itself.

The Court ultimately concluded that the statute prohibits the
latter, and that subject lines which contain any false or
misleading information violate CEMA. To reach that conclusion, the
Court observed that CEMA’s plain language requires
“evaluating the subject line alone,” because the statute
does not regulate the body (in notable contrast to other state
email statutes, such as California’s Business and Professions
Code § 17529.5). Thus, the Court held that an email can
violate the subject line provision “even when the false or
misleading information . . . does not deceive consumers about the
advertising purpose or commercial nature of the [email].”

The Court summarized its conclusion by stating that “CEMA
protects consumers by requiring that commercial e-mails communicate
honestly about the terms of a given promotion or sale in the
subject line.” While it went out of its way to clarify that
“puffery” or “subjective, unverifiable claims about
a product or service” would likely not be actionable subject
line claims, the Court ultimately found that CEMA prohibits sending
state residents commercial email messages that contain any
false or misleading information in their subject lines.

What does the Washington email ruling meaning for your
business?

CEMA sets a $500 penalty for sending commercial email messages
that violate the statute. As a result, potential liability for
non-compliance can accrue quickly for those email marketing
campaigns that include Washington State recipients. The Washington
Supreme Court’s ruling, and its tightening of the restrictions
applicable to what may be included in an email’s subject line,
should underscore the continuing evolution of the email marketing
regulatory environment. The rules governing email marketing
compliance are constantly changing. As such, email marketing
companies are advised to hire experienced counsel to ensure that
they comply with CEMA, CAN-SPAM, and other applicable federal and
state regulations.

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Email Marketing Compliance

Private Right of Action for California Email
Statute Violations

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.