Emerging Digital Marketing Risks: The Revival of State Anti-Spam Laws and Implications for Retailers

Recent anti-spam litigation is exposing national retailers to potentially significant statutory damages and reputational risk, requiring innovative legal strategies and coordinated compliance efforts.

Washington state’s Commercial Electronic Mail Act (CEMA), originally enacted in 1998, has recently become a focal point of litigation targeting national retailers for alleged violations involving marketing emails containing allegedly deceptive subject lines. The resurgence of CEMA, once considered outdated, is now driving a wave of class actions in Washington and influencing similar lawsuits under analogous laws in other states.

Over the course of 2025, dozens of new CEMA cases were filed against retailers, with plaintiffs seeking draconian statutory damages from each defendant—as much as $500 for each supposedly deceptive email sent to each individual class member, which plaintiffs argue should be trebled—as well as sweeping injunctive relief.

NOVEL THEORIES ADVANCED

These suits allege retailers have sent marketing emails that violate CEMA and analogous state laws, with litigation now surfacing across multiple jurisdictions. Three novel theories advanced by plaintiffs have been particularly prominent:

1. Omission Theories. Under these theories, plaintiffs allege that companies have sent email advertisements that omit a term or condition of the offered promotion in the email subject line. For example, the plaintiffs may allege the subject line itself does not disclose that the customer is required to satisfy a minimum purchase requirement to receive a promotion or discount. Often, the email body does contain the omitted term, however, because CEMA focuses on false or misleading information in the subject line, the plaintiffs claim these email advertisements violate the statute due to the subject line itself not including all terms and conditions.
2. Sale Duration Theories. Under these theories, plaintiffs allege that companies have sent email advertisements that understate the ultimate length of the sale advertised. For example, the plaintiffs may allege the company sent email advertisements where the subject line indicates that a sale will last two days only, but at the expiration of the two-day period the company allegedly sends an email extending the sale by an additional day. In the plaintiffs’ view, the initial emails are false and misleading because the two-day period initially advertised was allegedly intended to create an artificial sense of urgency.
3. Perpetual Sales Theories. Under these theories, plaintiffs allege companies have sent email advertisements with subject lines offering fictitious discounts because the companies supposedly have never offered the product or service at the underlying reference price. Thus, the plaintiffs contend the percentage discount advertised in the email subject line is allegedly false and misleading.

Plaintiffs also may attempt to invoke CEMA to impose liability for email subject lines containing allegedly exaggerated environmental claims, health benefits, or other representations regarding the nature, ingredients, attributes, or performance of a product or service.

Notably, the Washington Supreme Court has put some limits on the kinds of statements that may be actionable. The Court has confirmed that CEMA does not apply to mere puffery—for example, subjective statements, opinions, or hyperbole about a product or service—but rather applies to objective representations of fact only.

NOVEL LEGAL DEFENSES AND LITIGATION STRATEGIES

In response to this evolving threat, three primary defenses to such claims have emerged in the early phases of litigation:

First, defendants have argued that the plaintiffs’ claims, premised on a strict liability theory, are preempted by the CAN-SPAM Act. The US Congress passed CAN-SPAM, at least in part, to curb the proliferation of disparate CEMA-like laws across different states, which made it difficult for businesses with a national scope to leverage burgeoning internet and telecommunications technologies in interstate commerce.

In an effort to standardize these regulations, Congress expressly preempted state statutes that “regulate[] the use of electronic mail to send commercial messages” in CAN-SPAM. A narrow exception was included in CAN-SPAM for CEMA-like laws that “prohibit[] falsity or deception in any portion of a commercial electronic mail message,” but multiple circuits—including the Fourth and Ninth—have interpreted this preemption exception to permit only state law claims that closely resemble “torts involving misrepresentations,” i.e., traditional common law claims for fraud or deceit.

Further, some courts have rejected outright the “omission” theory described above on the ground that CAN-SPAM preempts claims based on immaterial omissions in an email subject line.

Second, defendants have argued that the plaintiffs’ claims fail to comply with Federal Rule of Civil Procedure 8(a)(2) and 9(b) because they do not plead an actionable violation plausibly and with sufficient particularity. Because CAN-SPAM’s preemption exception applies solely to claims premised on traditional tort theories, such as common law claims for fraud and deceit, plaintiffs arguably must meet the heightened pleading standard applicable to claims that sound in fraud.

This would mean plaintiffs must plead with sufficient particularity—and ultimately prove—the elements of a traditional fraud claim (i.e., materiality, reliance, injury, and scienter) to survive preemption.

Third, defendants have argued that the plaintiffs’ claims may be subject to binding arbitration agreements if, for example, the plaintiffs agreed to the company’s Terms of Use or other terms associated with a purchase, the company’s loyalty program, or another transaction, to the extent those contracts contain applicable arbitration agreements.

Of course, as these cases progress, numerous other defenses inevitably will emerge. For example, presumably many defendants will argue that their email subject lines are not, in fact, false or misleading in the manner alleged by plaintiffs and that any alleged statutory damages are vastly disproportionate to any purported harm and thus unconstitutional.

PRACTICAL TIPS TO MITIGATE RISK

Given the rapid evolution of anti-spam enforcement, retailers should anticipate increased scrutiny and litigation under analogous state statutes. Strong compliance programs, regular legal review of marketing practices, and robust arbitration provisions all are useful to mitigate these risks.

HOW WE CAN HELP

Morgan Lewis currently represents retailers in numerous CEMA class actions in Washington state and elsewhere. In addition to representing companies after litigation has commenced, we can help evaluate companies’ current marketing practices, establish appropriate vetting protocols, and review and propose revisions to arbitration agreements to manage litigation risks.