Washington Courts Broaden CEMA Liability to Misleading Emails and Employment-Related Texts

Summary

Two recent appellate decisions — Brown v. Old Navy, LLC, 567 P.3d 38 (Wash. 2025), and Aaland v. CRST Home Solutions, LLC, 575 P.3d 1279 (Wash. Ct. App. 2025) — mark a turning point in how Washington courts interpret the Washington Commercial Electronic Mail Act (CEMA, RCW 19.190). These rulings extend CEMA’s reach beyond traditional commercial advertising to include both misleading email subject lines and recruitment-based text messages. As statutory damages are set at $500 per message without the need to show actual damages, companies communicating electronically with Washington residents face new, sprawling exposure and must reevaluate their compliance programs.

The Expanding Scope of “False or Misleading” Email Content

Earlier this year, the Washington Supreme Court held, in Brown v. Old Navy, that CEMA prohibits any false or misleading information in the subject line of a commercial email, including even the duration or availability of a promotion, under RCW 19.190.020(1). This reading goes well beyond prior interpretations that limited liability to messages merely disguising their commercial nature.

The Washington Supreme Court reasoned that even objectively inaccurate promotional language — phrases such as “50 Percent Off Today Only” or “50 Percent Off Three Days Only” that are extended beyond the specified time limit — can violate CEMA if the advertised terms do not match the reality of the offer. A violation of CEMA’s regulations also constitutes a per se violation of Washington’s Consumer Protection Act, which further authorizes treble damages per message where a recipient incurs actual damages. Because each email constitutes a separate violation, exposure for large-scale email marketing campaigns that include Washington residents can escalate quickly.

Employment-Related Messages Now Considered “Commercial”

Last month, in Aaland v. CRST Home Solutions, the Washington Court of Appeals held that recruitment text messages sent to potential contractors qualify as “electronic commercial text messages” under RCW 19.190.060. The court emphasized that such messages “promote . . . services for sale or lease” within the meaning of CEMA under RCW 19.190.010(3) because recruiting contractors contributes to business growth and prosperity. The decision illustrates that Washington courts are willing to apply an expansive definition to the term “commercial” in RCW 19.190.010(3).

This decision broadens CEMA’s coverage beyond consumer advertising. Texts aimed at hiring, onboarding, or even expanding a contractor network — previously viewed as operational outreach — can now trigger broad statutory liability if sent to Washington phone numbers without consent. At the time of this publication, CRST has petitioned the Washington Supreme Court for review of the decision against it, contending that the Washington Court of Appeals’ interpretation is contrary to CEMA and an unconstitutional restriction on commercial speech under the First Amendment of the United States Constitution.

Implications for Digital Marketing and Privacy Compliance

CEMA’s private right of action and fixed statutory damages without the need to prove actual damages make Washington uniquely plaintiff-friendly and ripe for class action litigation. Plaintiffs’ attorneys are increasingly coupling CEMA claims with claims under the Washington Consumer Protection Act to potentially multiply defendants’ exposure in these cases with the added risk of treble damages.

To mitigate risk:

• Implement email subject-line review processes to verify factual accuracy and preserve evidence that can be used to establish that offers correspond precisely to the representations made in marketing communications.
• Obtain express consent before sending promotional or recruitment texts to Washington residents.
• Maintain state-specific opt-out and recordkeeping procedures.
• Audit third-party marketing or referral programs for “assisting transmission” exposure.
• To the extent email addresses are collected in a way that companies know or have reason to know they are associated with Washington residents, maintain those emails in a way that identifies them as linked to a Washington resident so that Washington recipients can be segmented from national campaigns where feasible.

Following the Washington Supreme Court’s ruling in Brown, Washington courts have seen a surge of enforcement class action litigation under CEMA’s email provision. The dearth in caselaw interpreting the statute, however, allows defendants to raise important challenges to CEMA’s expanded scope. For example, defendants have argued the federal CAN-SPAM Act, which similarly regulates commercial email subject lines, expressly preempts CEMA as interpreted. Defendants can also argue that CEMA violates the U.S. Constitution’s dormant Commerce Clause because CEMA directly controls commerce occurring entirely outside the boundaries of Washington and/or imposes an excessive burden on interstate commerce in relation to the putative local benefits. These are issues that will surely need to be resolved by the appellate courts eventually. And with this swell of litigation under CEMA, businesses should expect further guidance from the courts in the months ahead regarding the scope of the Act.

Arnold & Porter’s Commitment to the Pacific Northwest

As these developments unfold, Arnold & Porter is pleased to announce the opening of its Seattle office, which expands the firm’s capabilities in national privacy, consumer protection, and technology litigation. Our Seattle-based attorneys advise clients on CEMA compliance, defend class actions, and help companies align their marketing practices with evolving state and federal requirements.

The Pacific Northwest has become a proving ground for cutting-edge privacy and marketing issues. With a local presence, Arnold & Porter is positioned to help clients navigate Washington’s fast-moving regulatory environment and anticipate the next wave of state-level enforcement.

For more information, please visit our Seattle office page.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.