A recent ruling by the Washington Supreme Court has significantly heightened the legal risks for retailers who rely on email marketing to reach Washington consumers. In the closely watched case, Brown v. Old Navy (2025), the Court held that any false or misleading information in the subject line of a commercial email, even if minor, violates the Commercial Electronic Mail Act (CEMA). Each violation carries a $500 statutory penalty per email recipient, regardless of whether the consumer suffered any actual harm.
This means that commonly used marketing tactics, such as subject lines promising “Today Only” deals that later get extended, could expose businesses to massive liability. For example, if a retailer sends one violative email per week to 100,000 recipients over the course of a year, the total exposure could exceed $2.6 billion in penalties.
The ruling imposes what amounts to strict liability: retailers can be penalized even if the subject line wasn’t intentionally deceptive, and even if consumers weren’t actually misled. The court emphasized that simply receiving the email is enough to support a claim under CEMA.
Since the decision, at least eight lawsuits have been filed in state and federal courts, targeting both large national brands and smaller local retailers. Legal experts warn this is just the beginning of what may become a wave of class action litigation focused on email marketing practices.
What Retailers Should Do Now
In light of this decision, retailers are urged to take immediate steps to protect themselves:
- Carefully review all email subject lines to ensure they are factually accurate and not misleading.
- Avoid time-sensitive language (e.g., “Today Only” or “Last Chance”) unless the statement is strictly true.
- Train marketing teams on compliance to reduce the risk of violations.
- Join Washington Retail’s advocacy efforts to push for sensible reforms to CEMA that protect consumers without enabling abusive litigation.
With enforcement ramping up and penalties escalating, it’s time for retailers to RE-view, RE-train, and RE-act.
