Your Marketing Practices Could Cost You: What Companies Should Know About Washington’s Commercial Electronic Mail Act

Washington’s Commercial Electronic Mail Act (“CEMA”) has become the subject of intense litigation activity following the Washington Supreme Court’s April 2025 decision in Brown v. Old Navy.^[1] In that case, the Washington Supreme Court held that CEMA prohibits any false or misleading information in the subject line of a commercial email sent to a Washington resident, and favors a broad interpretation instead of limiting the statute to prohibiting false or misleading information as to the commercial nature of the email.

Misleading Email Marketing Could Lead to Exposure

The Washington Supreme Court’s ruling in Brown marks a significant expansion of CEMA’s reach and has prompted a surge of class action lawsuits against major retailers and consumer brands.  Since the Brown decision, over 60 putative class action suits are pending in the Western District of Washington against a wide range of household names.  The complaints generally allege that retailers used misleading email subject lines to create a false sense of urgency, such as by mischaracterizing the nature of the message, by advertising sales that expired after a specified period of time when the promotions were later extended, or by offering discounts based on inflated or sham prices.  Under CEMA, each violative email may result in statutory damages of up to $500, or actual damages if greater, creating substantial potential exposure for companies engaged in email marketing, and a violation of CEMA is a per se violation of the Washington Consumer Protection Act.  Furthermore, there currently is no requirement that a plaintiff allege to have detrimentally relied on or found the email at issue to be material.

Subsequent court decisions have created more challenges for defendants facing CEMA claims:

• In January 2026, a Western District of Washington court ruled that the federal Controlling the Assault of Non-Solicited Pornography and Marketing (“CAN-SPAM”) Act does not preempt CEMA because it falls within CAN-SPAM’s exception for state statutes prohibiting false or deceptive commercial emails.^[2]
• In February 2026, a different Western District of Washington court also found that CEMA is not preempted by the CAN-SPAM Act and determined that CEMA claims do not sound in fraud and therefore do not need to be pleaded with particularity under Rule 9(b)’s heightened pleading standard.^[3]
• That court also held that CEMA does not violate the dormant Commerce Clause (however, the court declined to address at that juncture the question of whether the damages sought are unduly punitive and, as such, a violation of due process).^[4]

Appetite for Reform: HB 2274 Sent to Governor for Enactment

The current wave of CEMA litigation illustrates a broader trend of applying old or broadly drafted statutes to contemporary digital marketing practices, often in ways the legislature may not have anticipated.  In response to the uptick in CEMA litigation following Brown, bills were introduced in both the Washington House and Senate to amend the statute.

One such bill, HB 2274, passed both the House and Senate with strong bipartisan support and was sent on March 10 to Governor Bob Ferguson for final enactment. The governor must act within 20 days to sign or veto the bill; otherwise, it will automatically become law. The bill would take effect 90 days after adjournment of the legislative session in which it is passed.

HB 2274 would reduce statutory damages for individual recipients from $500 to $100 per violation, or actual damages, whichever is greater, substantially decreasing potential exposure for companies engaged in email marketing.  The bill would also amend the statute so that liability attaches only where a subject line contains false or misleading information based on the sender’s
“actual knowledge or knowledge fairly implied on the basis of objective circumstances.”  By imposing a knowledge requirement, the bill could significantly narrow the scope of possible claims.  Damages for interactive computer services would remain at $1,000, or actual damages, whichever is greater.  Notably, the amended statute would govern any newly filed lawsuits, including those based on past marketing activity.  However, any active lawsuits would remain under the current CEMA, meaning the $500 penalty per message would still apply.

Considerations for Business Practices and Legislative Reform

In light of these developments, companies marketing to Washington residents or operating nationally should carefully review their email marketing practices for compliance with CEMA. 

• Particular attention should be paid to the accuracy of subject lines, accuracy of discounts, claims regarding urgency and the consistency of sale periods.
• Consider also the ability to deploy technical limitations.
• HB 2274’s amendment to CEMA is widely viewed as just the first step. The 2026 legislative session was a short, 60-day session; there is likely to be a more aggressive push for comprehensive reform during the longer, 105-day session in 2027. This upcoming interim period will be a critical window for stakeholders to engage with legislators and help shape the next round of reform.

Orrick will be closely tracking developments and is ready to help clients navigate what comes next.

Proactive compliance and risk assessment are critical to minimizing exposure. Orrick’s team brings together deep experience defending CEMA claims with coordinated legislative and regulatory insight to help clients navigate emerging risks and shape evolving frameworks. Through close collaboration with industry partners and engagement with lawmakers, we help ensure your company has a voice in ongoing reform efforts. If you would like to discuss these developments or their potential implications, please contact the authors or your usual Orrick contact.

Practice Analyst Leo Rubinson contributed to this article.