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Email marketers will want to take note of a recent <a href="https://www.courts.wa.gov/opinions/pdf/1025921.pdf" target="_blank" rel="noreferrer noopener">Washington State Supreme Court opinion</a> interpreting what constitutes a subject line that is “false or misleading” under Washington’s Commercial Electronic Mail Act (CEMA).

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The opinion issued on April 17 stems from private plaintiff litigation filed against Old Navy in which the plaintiffs alleged that certain emails sent by the retailer violated CEMA. For example, plaintiffs challenged as false or misleading subject lines announcing time-limited promotions (e.g., “today only” or “three days only”) when they were later extended beyond the specified time period. Plaintiffs claimed that Old Navy used false or misleading information in the subject lines to get consumers to open the emails and “make purchases based on a false sense of urgency.”

Following removal of the case to federal court, Old Navy moved to dismiss on the grounds that CEMA doesn’t prohibit any email subject line that is allegedly false or misleading but rather only subject lines that are false or misleading as to the <em>commercial nature of the underlying message</em>. In other words, Old Navy argued that to constitute a CEMA violation, it is not sufficient that the email subject line was purportedly false or misleading – as the state’s general consumer protection statute already covered that conduct – but instead the email subject line had to be phrased in such a way as to trick the recipient into opening the message. For example, a subject line such as “Hi, friend” when the email was in fact a solicitation was the type of false or misleading conduct the statute was intended to regulate.

Among other arguments, Old Navy relied on the fact that CEMA was passed in 1998, a time when many Americans had dial-up Internet and had to pay by the minute or per download, and therefore there were real costs associated with even opening an email message. Thus, in passing CEMA, the Washington State Legislature intended to assist Internet service providers in addressing the deluge of spam email by filtering out messages based on the headers and subject lines. Therefore, according to Old Navy, it was not any misrepresentation in a subject line that the Legislature was focused on but rather subject lines that sought to evade filters by concealing the true nature of the underlying message.

The federal court in Washington declined to rule on the merits of the argument and instead certified to the Washington State Supreme Court the question of how CEMA should be interpreted. The Retail Litigation Center and the Washington Retail Association filed an <a href="https://www.rila.org/getmedia/69e05689-1916-494b-91e6-46aea39fa4ce/Amicus-Brief-for-RLC-and-WRA.pdf?ext=.pdf" target="_blank" rel="noreferrer noopener">amicus brief</a> supporting Old Navy’s arguments on the law’s more narrow scope.

In a 5-4 opinion, Washington’s highest court sided with the consumer plaintiffs’ interpretation, concluding that CEMA prohibited any subject line that was allegedly false or misleading, finding such an outcome was consistent with a plain and unambiguous reading of the statute. The dissent found Old Navy’s arguments more persuasive, finding that interpreting CEMA to prohibit only those emails that disguise the underlying commercial purpose of the message was more consistent with the statutory framework, legislative history and case law.

Finally, while outside the scope of the certified question, the majority took the opportunity to address the concern that email subject lines that contain “banal hyperbole” could result in millions of dollars of potential exposure in CEMA liability. The majority agreed with the retailer that CEMA does not extend to commercial emails with subject lines containing “mere puffery” – i.e., those containing subjective statements, opinions and hyperbole – as compared with representations of fact, “like the duration or availability of a promotion, its terms and nature, the cost of goods, and other facts Washington residents would depend on in making their consumer decisions.” Further, in response to Old Navy’s concerns that an email subject line such as “Best Deals of the Year” could be actionable under CEMA if a better deal later became available, the majority also clarified that “[p]romotions that state ‘Best Deals of the Year’ are not misrepresentations and do not communicate information that retroactively becomes false (and actionable) under CEMA because market conditions change such that a better sale is later available.”

Even with this language in the majority opinion – likely added to temper the impact of the court’s decision and to dissuade potentially frivolous claims from being filed – private plaintiff litigation under CEMA is likely to increase, with even seemingly innocuous subject lines being challenged as false or misleading. Thus, email marketers may want to revisit their subject lines to confirm that any affirmative representations contained in them are true and accurate. When in doubt, erring on the side of puffery may be the better bet.

Not to Change the Subject (Line) … but Email Marketers May Want to Take Note of a Recent Washington Supreme Court Ruling

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