The Washington State Supreme Court in April handed down a decision against Old Navy that has far-reaching implications for email marketers.

The court ruled that Old Nay violated the state’s Commercial Electronic Mail Act (CEMA) by sending messages with subject lines that misled recipients on matters such as how long certain sales and promotions would last.

CEMA violations carry a penalty of $500 each incident, which can add up quickly to massive fines.

While CAN-SPAM overrides state anti-spam laws, it does not apply to laws concerning fraud and deception.

In a class-action lawsuit filed by Roxann Brown and Michelle Smith, the plaintiffs alleged that Old Navy violated CEMA when it sent them e-mails that, for example, announced that a 50-percent off promotion was ending even though Old Navy continued to offer the 50-percent off promotion in the days following the initial e-mail.

Other examples include emails that announced time-limited promotions (e.g. “today only” or “three days only”) that were extended beyond the specified time limit.

Smith and Brown categorized the emails into four types:

• Emails that announced offers that were available for longer than the time stated in the subject line

• Emails that falsely suggested an old offer was new

• Emails that falsely suggested an offer was ending

• Emails that falsely stated a promotion was extended.

The plaintiffs claimed 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.”

Old Navy argued that CEMA applied only to subject lines that mislead about the commercial nature of the message.

The court disagreed with Old Navy and agreed with the plaintiffs that the subject lines “merely needs to contain false or misleading information” to violate CEMA.

“This means that a commercial email violates (CEMA) even when the false or misleading information in the subject line does not deceive consumers about the advertising purpose or commercial nature of the email,” the court stated.

The court also differentiated between “mere puffery” or highly subjective terms that can’t be substantiated, and statements of fact, such as the duration of the promotion.

It gave “Best Sale of the Year” as an example of mere puffery that is subjective and can’t be substantiated, therefore, not in violation of CEMA.

“[S]ubjective, unverifiable claims about a product or service are ‘mere puffery’ and cannot give rise to a false advertising claim.”

So email subject lines can still engage in a little hyperbole in Washington, but they better be factually accurate or the fines could get steep.

Key Takeaways

1. Avoid Deceptive Urgency Tactics

The lawsuit underscores the legal risks associated with using false urgency in email subject lines. Marketers should ensure that any time-sensitive language accurately reflects the promotion’s actual duration. Misleading consumers about sale timelines can lead to legal challenges and damage brand trust.

2. Transparency Is Crucial

Clear communication about promotional periods is essential. Instead of using vague urgency phrases, provide specific details about the promotion’s start and end dates. This transparency helps build consumer trust and reduces the risk of legal issues.

3. Understand State-Specific Regulations

Laws like Washington’s CEMA and CPA have specific requirements regarding email marketing practices. Marketers should familiarize themselves with both federal and state regulations to ensure compliance and avoid potential legal pitfalls.

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4. Monitor Legal Precedents

The outcome of this case may influence future legal standards for email marketing practices. Staying informed about the case’s progression can help marketers adapt their strategies in line with evolving legal expectations.

In summary, Brown and Smith v. Old Navy serves as a cautionary tale for email marketers, highlighting the importance of honesty and clarity in promotional communications. Adopting ethical marketing practices not only ensures legal compliance but also fosters long-term consumer trust and loyalty.

https://cases.justia.com/washington/supreme-court/2025-102-592-1.pdf?ts=1744904580