Email marketers have been granted relief
from the state of Washington’s Commercial Electronic Mail Act (CEMA).
The tough 1998 law, which prohibits false or misleading information in subject lines, has been softened in two ways
by an amendment signed by Governor Bob Ferguson.
For one, the penalty for each violation has been reduced from $500 to $100.
For another, liability would have to be based on
“actual knowledge fairly implied on the basis of objective circumstances,” according to JD Supra, writing prior to Ferguson’s signing the amendment. That apparently
means intent to deceive.
These changes could have an impact on the consumer lawsuits piling up,
Last April, in Brown v. Old Navy, the Washington
Supreme Court ruled that CEMA prohibits “any false or misleading information in the subject line of a commercial email sent to a Washington resident.”
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The court gave
“an expansive interpretation of the statute, holding that it is not limited to whether an email’s subject line accurately reflects its commercial nature,” says
Fashionlaw.com. “It also applies to what the subject line says about promos – such as when a sale ends or how long it will be available – making clear that those statements will
be treated as factual claims, not mere marketing hype, and can give rise to liability if they are false or misleading.”
Following that ruling, the legislature sought to amend
the law.
Further reforms could occur during the 2027 legislative session, JD Supra reports. but don’t get too comfortable.
As JD Supra writes, “Particular
attention should be paid to the accuracy of subject lines, accuracy of discounts, claims regarding urgency and the consistency of sale periods.
It adds, “Consider also the ability to
deploy technical limitations.”