• by Ray Schultz , Columnist, 97 minutes ago

The state of Washington may have softened the subject line rules contained within its Commercial Electronic Mail Act. CEMA). But please be advised that the state is filled with individuals who want to litigate the creative content in emails, particularly the subject lines.  

Take the lawsuit filed against FabFitFun, Inc. late last week. It alleges that the company sends marketing emails that offer a “free gift,” but that the consumer has to make a purchase or a subscription to obtain the item.

These emails violate CEMA and the state’s Consumer Protection Act, the suit argues. 

“By sending these commercial e-mails that purport to contain ‘free’ offers — provided the recipient first pay for a subscription or product — Defendant violates Washington’s prohibition on sending commercial e-mail messages that ‘contain false or misleading information in the subject line,’” the FabFitFun lawsuit says, according to Top Class Actions. 

Time will tell if this really is a “top class action.” But the specifics are as follows: 

The plaintiff claims she was sent an email with the subject line “Don’t Wait! Get a FREE 2nd Winter Box Before It’s Gone!” 

But the fine print said the offer was only available for customers who have an annual membership, she continues.

In addition, the emails create a false sense of urgency, the suit contends. Multiple emails said this was the “last call” to get a free box.

Fairly or unfairly, brands are getting hit more often with this type of accusation. Late last year, attorneys who work with ClassAction.org started trying to create a mass arbitration against the venerable retailer Lands’ End, alleging that it violating consumer protection laws of Washington, Maryland and Indiana with subject lines that warn, “Ends Tomorrow! Or “Ends Tonight!” 

We’re not familiar with the emails. But what if the sales did end when the subject line stated?

Meanwhile, the state of Washington is trying to be more business-friendly. 

It has moderated CEMA, a 1998 law that prohibits false or misleading information in subject lines in two ways: 

1. The penalty for each violation has been reduced from $500 to $100 (a significant reduction in cases that might have thousands or even millions of possible class members). 
2. 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.

Still, we’ll say it again. Watch your subject lines. The lawyers are out there waiting.