Email Subject Lines Are the New Advertising Litigation Battleground: What Retailers Should Know About CEMA

By: Daniel J. Gershman and Elysse M. Anderson

“Ends Tonight!” “Last Chance!” “Today Only: 50% Off.”

These are among the most effective subject lines in retail email marketing, and they are now among the most litigated. Since April 2025, more than 100 class action lawsuits have targeted retailers for allegedly misleading promotional email subject lines under Washington’s Commercial Electronic Mail Act (“CEMA”). The claims are straightforward: if the subject line says a promotion ends on a given date but the same offer reappears immediately thereafter, then the subject line was false or misleading, and the statute imposes damages, calculated on a per-email basis, regardless of whether anyone was actually harmed.

This article summarizes what retailers, direct-to-consumer (“DTC”) brands, and e-commerce businesses, including New York–based companies sending campaigns nationally, need to know about CEMA, the recent legislative amendments, and parallel exposure under California’s anti-spam law and federal CAN-SPAM.

Why CEMA Matters Now

Washington’s CEMA (RCW 19.190) has been on the books since the late 1990s. For most of its history, it generated minimal litigation. That changed after the Washington Supreme Court’s April 2025 decision in Brown v. Old Navy, LLC, which dramatically expanded how courts interpret the statute’s subject-line prohibition.

CEMA applies to any commercial email sent from a computer located in Washington or to an email address the sender knows or has reason to know belongs to a Washington resident. That recipient-based jurisdictional hook means any national retailer emailing a Washington subscriber list is within CEMA’s reach, regardless of where the sender is headquartered.

The statute provides a private right of action with statutory damages (now $100 per email after the 2026 amendment, formerly $500), no requirement of actual injury, and potential additional exposure under Washington’s Consumer Protection Act. Multiply per-email damages by a large subscriber list and frequent promotional sends, and the risk calculus becomes significant.

What Brown v. Old Navy Changed

Before Brown, most practitioners read CEMA’s subject-line prohibition narrowly and only as targeting emails that disguise their commercial nature (e.g., a marketing email with a subject line mimicking a personal message to evade spam filters). The Washington Supreme Court rejected that narrow reading and held:

• Broad scope. RCW 19.190.020(1)(b) prohibits any false or misleading information in the subject line of a commercial email, not only information that misleads the recipient about the email’s commercial nature.
• Subject line evaluated alone. Whether a subject line is misleading is determined by looking at the subject line itself, not by reference to qualifying disclosures in the email body. The body of the email cannot cure a misleading subject line.
• Factual claims are actionable; puffery is not. The court distinguished “mere puffery” (subjective opinions, hyperbole) from actionable factual representations. Statements about promotional duration, offer availability, pricing terms, and cost of goods are factual claims. “Best deals ever” may be puffery; “Ends Tonight” is not.
• No actual harm required. The statutory injury is receiving an email that violates CEMA. No showing of reliance, out-of-pocket loss, or deception is required.

The practical result: routine retail promotional subject lines, such as “Today Only,” “Ends Tonight,” “Last Chance,” “Three Days Only” became litigation targets if the offer continued beyond the stated window, even by hours.

What Washington’s 2026 Amendment Changed and What It Did Not

Following the post-Brown litigation surge, Washington enacted HB 2274, signed March 23, 2026, effective June 11, 2026 (the “Amendment”). Key changes:

• Knowledge requirement. A subject line violates CEMA only if it contains false or misleading information that the sender had “actual knowledge” of, or knowledge “fairly implied from objective circumstances.” This eliminates pure strict liability for inadvertent errors.
• Reduced statutory damages. Recipient damages decreased from $500 to $100 per email (or actual damages, whichever is greater).
• Prospective application. The Amendment applies to all causes of action commenced on or after June 11, 2026, regardless of when the conduct occurred. Lawsuits filed before that date remain under the prior $500/strict-liability framework.

What the Amendment did not solve:

• The broad Brown interpretation remains intact. The subject-line prohibition still covers any false or misleading factual information not merely information about the email’s commercial character.
• The “subject line alone” rule still applies. Body-of-email disclosures still cannot cure a misleading subject line.
• $100 per email still aggregates. A retailer sending 500,000 promotional emails to Washington recipients faces $50 million in theoretical statutory exposure.
• Pending pre-Amendment cases are unaffected by the new law. Defendants are still subject to the damage guidelines set prior to the enactment of the Amendment.

Why California and CAN-SPAM Still Matter

California Business & Professions Code § 17529.5. California’s anti-spam statute prohibits commercial email with a subject line that the sender knows would be likely to mislead a reasonable recipient about a “material fact regarding the contents or subject matter” of the message. While the California statute’s scope is framed slightly differently from CEMA (focused on misleading recipients about message content/subject matter rather than any factual inaccuracy), plaintiffs’ counsel are increasingly testing it in parallel. California permits liquidated damages of $1,000 per unsolicited email (up to $1,000,000 per incident), with a safe-harbor reduction to $100 per email for senders who establish reasonable compliance programs.

Since early 2026, a growing wave of California anti-spam class actions has targeted companies nationwide that send promotional emails to California residents. The claims extend beyond subject lines to include allegedly forged headers, mismatched display names, unauthorized domain references, and authentication failures (SPF/DKIM/DMARC). A national retailer can face simultaneous Washington CEMA and California § 17529.5 exposure from a single campaign.

Federal CAN-SPAM. CAN-SPAM prohibits deceptive subject lines and materially false or misleading header information in commercial email. It is enforced by the FTC and carries penalties of up to $53,088 per violation. Critically, CAN-SPAM preempts state laws that “expressly regulate” commercial email except state laws that prohibit falsity or deception in any portion of a commercial email. Because CEMA and California § 17529.5 target deceptive content, courts have generally held they survive preemption. Retailers cannot rely on CAN-SPAM compliance alone as a defense against state-law claims.

The practical takeaway for New York–based retailers: Even though New York does not have a CEMA-equivalent statute, any retailer sending commercial email to Washington or California recipients faces those states’ recipient-based jurisdictional standards. A single national campaign must comply with the strictest applicable standard.

Subject Lines and Promotional Claims Drawing Scrutiny

Post-Brown litigation has targeted the following categories of subject-line language:

• False urgency / countdown claims: “Ends Tonight,” “Last Chance,” “Today Only,” “Three Days Only,” “ASAP: up to 65% off ends tomorrow” – where the promotion continued beyond the stated deadline.
• Extended promotions claimed as ending: “Last chance! 40–60% off disappears tonight” – where the same discount ran the following week.
• Old offers presented as new: Subject lines implying a “new” sale when the same offer had been running continuously.
• Discount scope mismatch: “50% Off” in the subject line when only select categories qualify and the limitation appears only in the email body.
• Falsely stated extensions: “Extended!” when the promotion was never actually set to end at the prior-stated time.

Defendants have included major national retailers across apparel, beauty, footwear, tire/automotive, and general merchandise categories. The common thread: the subject line made a specific factual claim about timing, scope, or availability that did not match what actually happened.

Practical Compliance Checklist for Email Marketing

Use the following checklist to reduce exposure under CEMA, California § 17529.5, and CAN-SPAM:

• Treat every subject line as a standalone advertising claim. Do not rely on the email body to qualify, limit, or correct what the subject line states. Under Brown, the subject line is evaluated on its own.
• Ensure promotional deadlines in subject lines are real. If the subject line says “Ends Tonight,” the offer must actually end tonight. Do not extend promotions beyond subject-line deadlines without updating messaging.
• Use durable, flexible language when exact timing is uncertain. Consider “While supplies last,” “Limited time,” or “Don’t miss out” rather than hard deadlines you may not honor. Note: even flexible language must not be misleading in context.
• Synchronize subject lines with promotional calendars and deployment systems. Automate offer end-times so that email sends and offer expirations are technically linked, not manually coordinated. Document the synchronization.
• Confirm discount scope matches the subject line. If the subject line says “50% Off,” ensure the discount applies broadly enough that the claim is not materially misleading. If it applies only to select items, say so in the subject line (e.g., “Up to 50% Off Select Styles”).
• Document what was known about the price and discounts at the time the email was sent. Under Washington’s amended knowledge standard, records showing what the sender knew (or should have known from objective circumstances) at the time of transmission are the primary defense.
• Audit California-specific requirements. Ensure sender domains, display names, and header information are accurate and authorized. Implement SPF, DKIM, and DMARC authentication. Confirm that opt-out mechanisms function correctly.
• Maintain CAN-SPAM compliance as a baseline. Identify messages as ads where required, include a valid physical postal address, provide clear opt-out mechanisms, honor opt-outs within 10 business days, and ensure subject lines accurately reflect message content.
• Impose contractual compliance obligations on vendors, affiliates, and marketing partners. The sender of the email and the company whose product is promoted may both be legally responsible. Monitor third-party practices.
• Preserve compliance records. Maintain audit trails of promotional calendars, offer terms, subject-line approval processes, send times, and offer expiration documentation. These records are critical for defense and for demonstrating the “reasonable compliance program” safe harbor under California law.

How FRB Can Help

Falcon Rappaport & Berkman LLP advises retailers, DTC brands, and e-commerce platforms on advertising compliance, email marketing practices, and consumer protection matters in New York and nationally. Whether you need a subject-line compliance audit, vendor contract review, defense of a pending CEMA or California anti-spam claim, or guidance on building a documented compliance program, our team is available to help.

Contact us at frblaw.com to discuss your email marketing practices.

DISCLAIMER: This summary is not legal advice and does not create any attorney-client relationship. This summary does not provide a definitive legal opinion for any factual situation. Before the firm can provide legal advice or opinion to any person or entity, the specific facts at issue must be reviewed by the firm. Before an attorney-client relationship is formed, the firm must have a signed engagement letter with a client setting forth the Firm’s scope and terms of representation. The information contained herein is based upon the law at the time of publication.