On April 17, 2025, the Supreme Court of Washington ruled in Brown v. Old Navy1 that advertisers cannot send emails that contain any false or misleading information in the email subject line. This ruling expands the scope of Washington's anti-spam law known as the Commercial Electronic Mail Act (CEMA), which was passed in 1998 to address the influx of unsolicited, deceptive or misleading commercial emails received by Washington consumers. The court was faced with the question of whether CEMA (1) prohibits any false or misleading information in the subject line of a commercial email or (2) only prohibits false or misleading information that misrepresents the email's commercial nature. Ultimately, the court broadly interpreted CEMA as prohibiting any false or misleading information in the subject line of a commercial email.
The Case
In Brown v. Old Navy, consumers filed a class action lawsuit against retailer Old Navy, alleging that Old Navy sent marketing emails to consumers with subject lines containing false or misleading information about the duration of its promotions. According to the complaint, Old Navy sent emails advertising promotions using phrases such as "Today only" or "Three Days Only" in the subject line, when the promotion lasted longer than advertised or the item of sale had already been discounted for longer than advertised, to create a false sense of urgency to drive sales. In response, Old Navy argued that the U.S. District Court for the Western District of Washington previously held that CEMA only prohibits false or misleading information as to the commercial nature of the email (see Chen v. Sur La Table, Inc., 655 F. Supp....
