An Amendment to Washington’s Commercial Electronic Mail Act (CEMA)

Retail Client Takeaway Summary

1. Litigation under Washington’s CEMA, RCW 19.190, have flooded courts following a ruling from the Washington Supreme Court on April 17, 2025, which held that email subject lines containing false or misleading information were violative of CEMA and per se violations of the Consumer Protection Act (CPA).
2. A legislative amendment, HB2274, was signed into law on March 23, 2026 and instituted three new changes to CEMA: (1) requiring senders to have actual knowledge that the email contains false or misleading information; (2) reducing statutory damages from $500 to $100; (3) CEMA amendments do not apply retroactively to causes of action commenced prior to June 11, 2026.

For further discussion of these developments, see our accompanying vidcast episode.

Increased CEMA Litigation

On April 17, 2025, the Washington Supreme Court ruled that email subject lines containing false or misleading information were violative of CEMA and per se violations of the CPA. Since the Washington Supreme Court case, there have been approximately 115 cases filed alleging violations of CEMA. Especially for online retail clients, who advertise heavily over email, this statistic is something that clients should be wary of as they solicit Washington residents.[1]

Legislative Amendment (HB2274)

Legislative amendment, HB2274, has attempted to stem the flow of lawsuits against retailers. As the senate bill report notes that prior to June 2025, only eight CEMA lawsuits affected retailers, but since June 2025, “there have been over 100 CEMA lawsuits.” The report goes on to note that the Washington Supreme Court’s ruling that “the falsity of a commercial email was determined by the subject line, not the body of the email…was not the legislative intent.” On March 23, 2026, the Washington legislature and Governor Bob Ferguson acted in three ways to address CEMA’s reach with HB 2274.

First, the legislature revised RCW 19.190.020(1)(b) to specify that a commercial email that “uses a subject line which, based on the person’s actual knowledge or knowledge fairly implied on the basis of objective circumstances, contains false or misleading information in the subject line” is unlawful.

This added knowledge requirement could cut in favor of defendants in these cases. This could lead to defeating the case at the summary judgment stage if a defendant did not have knowledge that it sent an email with a subject line that contained false or misleading information. Moreover, if senders take precautions to ensure (and be able to prove) that the email subject lines were drafted based on good-faith representations and understanding of the promotions at the time the email was sent, then this could shield them from liability under the statute’s amendment.

Next, RCW 190.040(1) lowered the statutory damages for recipients of emails violative of CEMA from $500 per violation/commercial email to “$100 or actual damages, whichever is greater.” While this reduction does not eliminate liability for senders, it does materially reduce potential damages.  However, the potential exposure could still be significant especially for high-traffic email retailers, given the likelihood that these cases will be asserted as class actions resulting in aggregate liability.

Lastly, the legislature decided to not apply the CEMA amendments retroactively. Specifically, the act “applies to all causes of action commenced on or after the effective date of this section [June 11, 2026], regardless of when the cause of action arose.” In other words, all suits commenced on or after June 11, 2026, would be bound by the CEMA amendments. In the interim, this amendment is already leading to increased filings as the class action plaintiffs’ bar races to the courts to take advantage of the higher statutory damages and lack of knowledge requirement while they still can.

Conclusion

Though the April 17, 2025 Washington Supreme Court ruling opened the floodgates of litigation under CEMA, there will likely be a shift in the landscape following the Washington legislature’s recent amendments to the Act, with an anticipated drop to come in the number of these class actions filed against retailers. Regardless, in order to mitigate their risk and comply with CEMA, retailers and businesses should ensure that subject lines are accurate—particularly those advertising promotional offers or sales—even if the body of the emails qualify the subject line. Moreover, senders should pay particularly close attention to time-sensitive promotions and ensure they do not run for more than their allotted time. 

Looking ahead to changes brought on by HB 2274, senders could shield themselves from liability by instituting a review of subject lines prior to sending to ensure accurate wording and representations and maintaining clear documentation, which shows the factual bases for subject line claims, is key.

As litigation continues and a body of case law is developed interpreting CEMA, including the recent amendments, retailers should continue to be vigilant and develop compliance guardrails given lawsuits under CEMA.

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[1] RCW 19.190.020(1) states that “[n]o person may initiate the transmission, conspire with another to initiate the transmission or assist the transmission, of a commercial electronic mail message from a computer located in Washington or to an electronic mail address that the sender knows, or has reason to know, is held by a Washington resident.”