Anti-Spam Litigation Intensifies Over Retail Email Subject Lines

Covington reports that recent developments in state anti-spam litigation are creating heightened exposure for retailers that use potentially misleading email subject lines. The Washington State Supreme Court’s interpretation of the Commercial Electronic Mail Act (“CEMA”) in Brown v. Old Navy LLC has broadened the scope of prohibited content, prompting a surge in putative class actions.

CEMA prohibits sending commercial electronic mail to Washington residents containing “false or misleading information in the subject line.”

The lawsuits challenge marketing practices that convey urgency or limited-time offers, raising complex questions about preemption under federal law and companies’ compliance obligations.

The Washington Supreme Court ruled that the statute applies to any false or misleading content in the subject line, not merely to statements about the commercial nature of the message. Following that decision, several retailers, including Macy’s and Discount Tire, faced class action claims alleging that promotional email subject lines misrepresented the duration or urgency of sales, even when similar offers were subsequently available.

Defendants have raised preemption arguments under the federal CAN-SPAM Act and, in some cases, challenged CEMA’s constitutionality. Courts have yet to resolve these challenges definitively.

CAN-SPAM prohibits materially deceptive headers or subject lines but preempts state laws that do not involve falsity or deception. Federal courts have distinguished between immaterial errors and materially misleading practices, with cases such as Hypertouch, Inc. v. ValueClick, Inc., and Asis Internet Services v. Subscriberbase Inc. finding claims based on materially deceptive subject lines may survive preemption.

These precedents suggest that allegations involving misleading promotional statements could be actionable under state law despite CAN-SPAM.

Legal teams should assess email marketing practices and subject line content to reduce exposure to anti-spam litigation. Compliance evaluations should address whether communications could create a misleading sense of urgency. State-specific anti-spam statutes need to be considered, as does alignment with broader prohibitions against unfair or deceptive acts.

Businesses may also want to review internal procedures and training regarding marketing communications to mitigate potential liability from materially deceptive email subject lines.