Washington’s Commercial Electronic Mail Act: Assessing potential retailer exposure following 2026 amendments

As online shopping and email-based marketing have become an increasingly large portion of retail sales, Washington’s Commercial Electronic Mail Act (CEMA) has been invoked in a number of lawsuits challenging routine communications from retailers. Although the increase in litigation activity prompted the Washington State Legislature to amend CEMA in 2026, the recent statutory amendments do not alter the features that have created a high volume of putative class action lawsuits brought under the statute. 

This alert discusses the CEMA litigation backdrop, the scope of the 2026 amendments, and key takeaways for retailers following their enactment.

Background

CEMA applies broadly to all commercial emails sent to Washington residents, regardless of whether a retailer maintains a physical presence in the state. Recent court decisions reflecting an expansive interpretation of the statute have resulted in an increase in putative class action lawsuits over the past year. Witnesses testifying before the Washington State Senate Business, Trade & Economic Development Committee reported that more than 100 CEMA lawsuits had been filed in the preceding twelve months, compared to eight CEMA lawsuits against retailers filed in the first two decades following the statute’s enactment in 2005.¹  

The Washington State Legislature responded to the rise in litigation with statutory amendments under Engrossed Substitute House Bill 2274, which Governor Bob Ferguson signed into law on March 23, 2026. While the amendments reflect an effort to address concerns associated with this increase in litigation, they do not substantially alter the fundamental structure of CEMA or the types of claims plaintiffs may assert.

Under CEMA, plaintiffs may seek statutory damages based on any commercial email sent to a Washington resident that contains false or misleading information in the subject line (RCW 19.190.020). Unlike many consumer protection statutes, CEMA focuses exclusively on the subject line of commercial emails and does not require proof of actual or reasonable reliance, materiality, or financial harm before invoking statutory damages. In the putative class action lawsuits filed to date, plaintiffs have repeatedly alleged that retailers sent emails with allegedly deceptive subject lines, regardless of whether class members opened those emails, read them, or even knew they arrived.

Plaintiffs have advanced a range of theories regarding subject lines that they allege are false or misleading, including statements concerning the duration of upcoming sales, buy-one-get-one-free offers, and exclusions applicable to advertised promotions. Because CEMA focuses solely on subject lines rather than the content of the email as a whole, plaintiffs have argued that subjects are misleading even if the body of the message discloses additional terms or conditions eliminating any doubt about the meaning of the subject line. In addition, because CEMA considers the location of the email recipient rather than the sender, retailers may face potential exposure under the statute regardless of where in the country – or the world – they are based.

Scope of the 2026 amendments

CEMA authorizes statutory damages to each class member who received a prohibited email, creating the potential for significant exposure to retailers in class action litigation. Prior to the 2026 amendments, CEMA permitted statutory damages of $500 per recipient of each false or misleading email. By way of illustration, a retailer that sent twenty relevant emails to a class of 10,000 Washington residents could face claims seeking $100 million in statutory damages. During its 2026 session, the Washington State Legislature reduced the statutory damages available to $100 per misleading email per recipient. While lower, those statutory damages still provide the plaintiffs’ bar a significant incentive to pursue CEMA claims.

The 2026 amendments also revised the statutory standard governing actionable subject lines. Before these amendments, CEMA prohibited the transmission of a commercial electronic mail message to a Washington resident if the message contained false or misleading information in the subject line. Earlier versions of the proposed legislation would have added materiality and reliance elements to CEMA, mirroring the majority of consumer protection statutes nationwide.²  

However, the final bill signed on March 23, 2026 did not incorporate those additional elements or address the broader differences between CEMA and traditional tort-based claims. Instead, the Legislature amended CEMA to prohibit the delivery of an email to a Washington resident that “[u]ses 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.”³ This revision directs courts to consider the sender’s knowledge in evaluating potential liability, while leaving intact CEMA’s focus only on the language of a subject line – regardless of whether anyone is actually misled. 

Stakeholders testifying before the Washington State Senate described the recent amendments as the product of extensive negotiations “to reach a temporary compromise with an agreement to continue working over the interim to develop a permanent solution.”⁴ Absent additional legislative changes, however, the statute’s existing framework remains in place. 

Key takeaways

CEMA continues to present a risk of potential exposure to litigation for companies that advertise by email. In recent cases, plaintiffs have taken the position that subject lines must be evaluated in isolation, without reference to disclaimers or qualifications contained in the body of the email. Previous complaints have also sought hundreds of millions of dollars in statutory damages regarding a small number of challenged emails. Against this backdrop, the accuracy and framing of commercial email subject lines remain a key consideration for retailers engaged in electronic marketing.

¹ Engrossed Substitute House Bill 2274, Senate Bill Report (2026), available at https://lawfilesext.leg.wa.gov/biennium/2025-26/Pdf/Bill%20Reports/Senate/2274-S.E%20SBR%20APS%2026.pdf?q=20260331214728.

² House Bill 2274 (2026), available at https://lawfilesext.leg.wa.gov/biennium/2025-26/Pdf/Bills/House%20Bills/2274.pdf#page=1.

³ Engrossed Substitute House Bill 2274 § 1 (2026) (amending RCW 19.190.020(1)(b)), available at https://lawfilesext.leg.wa.gov/biennium/2025-26/Pdf/Bills/Session%20Laws/House/2274-S.SL.pdf.

⁴ Id.