Washington Legislature Narrows State Anti-Spam Law After Retail Litigation Surge

Washington’s legislature enacted amendments to its Commercial Electronic Mail Act (CEMA) provision prohibiting false or misleading subject lines in commercial email. Those amendments, enacted through HB 2274, became effective on June 11, 2026. A concerted push to amend CEMA arose following a surge of class action litigations that were filed after the Washington Supreme Court’s 2025 decision in Brown v. Old Navy, LLC.

As interpreted in Brown, the CEMA subject line provision provided for essentially strict liability with $500 in statutory damages, as well as potential trebling and attorney fees. In response to the onslaught of litigation post-Brown, the legislature amended CEMA to reduce the amount of statutory damages available, add a knowledge requirement to the statute, and reject aspects of the expansive liability framework that exposed businesses to potentially ruinous class action litigation for otherwise innocuous marketing activity.

These changes become effective after nearly 200 class action lawsuits filed in Washington alleging CEMA email subject line violations post-Brown. While the amendments are not retroactive, only narrowing potential exposure for any future lawsuits, CEMA remains a significant litigation risk for companies that market to Washington residents.

KEY TAKEAWAYS

• HB 2274 became effective June 11, 2026, and significantly modifies Washington’s Commercial Electronic Mail Act subject line provision.
• The amendments add a knowledge-based liability standard, replacing what many plaintiffs have argued was effectively a strict-liability regime following Brown v. Old Navy.
• Statutory damages have been reduced from $500 to $100.
• The amendments do not apply retroactively to actions commenced before the statute’s effective date.
• Retailers, consumer brands, hospitality companies, and other businesses that rely on email marketing continue to face litigation risk under CEMA, particularly with respect to time-sensitive promotional claims and discount-related subject lines.

BACKGROUND: FROM BROWN TO HB 2274

Washington's CEMA regulates the sending of commercial emails to Washington residents by prohibiting “false or misleading” information in subject lines. The act does not define “false or misleading,” and the question of the prohibition’s scope has been left open to judicial interpretation. The act remained largely dormant for decades after its enactment in 1998. That changed dramatically in April 2025 when the Washington Supreme Court issued its decision in Brown v. Old Navy.

The Brown court rejected a narrower interpretation of CEMA that prohibited only subject-line information that concealed the commercial nature of the email. Instead, the court held that CEMA's prohibition on false or misleading information applied broadly and that an email subject line just needs to contain any false or misleading information to violate CEMA. The decision immediately generated interest among the plaintiffs' bar and sparked a wave of class actions against national retailers and consumer brands.

With lawsuits seeking $500 in statutory damages per violation (which plaintiffs argue should not only be trebled but also can be awarded in the absence of either actual harm or deceptive intent on the part of the defendants), the potential aggregate damages exposure for even modest marketing campaigns could quickly expand into theoretically enormous exposure for large brands. Additionally, a violation of CEMA is a per se violation of Washington’s Consumer Protection Act, under which a prevailing plaintiff may recover attorney fees and costs.

Morgan Lewis has defended clients—including a dozen retailers of all sizes across multiple industries—in a number of these high-stakes class actions (see our January 6, 2026 Insight). The rapid increase in litigation prompted significant concern among retailers, trade groups, and legislators. Against this backdrop, Washington lawmakers enacted the HB 2274 amendments, describing the legislation as an effort to restore the statute to its intended scope and address concerns arising from the post-Brown litigation landscape. Many legislators made clear, however, that this amendment does not go far enough, and that they will revisit the issue in the next legislative session.

HB 2274: LEGISLATIVE RESPONSE TO CEMA LITIGATION

HB 2274 was signed into law on March 23, 2026. The legislation introduces several significant changes.

Knowledge Requirement

Perhaps the most consequential amendment is the addition of a knowledge requirement. The updated language expressly permits liability only if the sender has “actual knowledge” or “knowledge fairly implied” from objective circumstances that the subject line of a message contains false or misleading information at the time of sending.

In practice, this means plaintiffs cannot prevail simply by showing that the subject line of a marketing email turned out to be inaccurate. Rather, they must meet a higher evidentiary burden concerning internal marketing processes. This provides an additional defense for senders who can document that plans for campaigns and promotion timelines were established in good faith at the time the emails were sent and any differences between plan and end result are based on external contingencies or changes in circumstances.

Reduced Statutory Damages

HB 2274 also substantially reduces statutory damages. Under prior law, plaintiffs could recover $500 or actual damages, whichever is greater. Plaintiffs routinely argue that the statute allows them to seek $500 per allegedly violative email for each recipient, but no court has conclusively resolved the viability of that theory. Nor does the amended statute specifically address it; instead, it simply reduces available statutory damages to $100.

Although this reduction theoretically decreases exposure significantly, aggregate liability may still be substantial for businesses that implement large-scale high-volume email marketing campaigns. For example, a single email campaign reaching half a million Washington residents could still create aggregate statutory exposure of $50 million.

Prospective Application

The legislature elected not to apply the amendments to pending litigation retroactively. As a result, litigation commenced before the effective date of June 11, 2026 will continue under the prior statutory framework.

PRACTICAL IMPLICATIONS FOR BUSINESSES

Companies that send marketing emails that could potentially reach Washington residents should review their email marketing practices in light of both Brown and HB 2274.

Particular attention should be given to:

• Sale expiration claims;
• Limited-time promotional offers and extensions;
• Inventory and availability representations;
• Discount percentages and pricing claims;
• “Last chance,” “ends tonight,” and similar urgency-based messaging; and
• Internal review and approval procedures for marketing campaigns.

Companies should also consider maintaining documentation supporting promotional claims and the factual basis for subject-line representations at the time marketing emails are distributed. Such records may become important evidence in demonstrating the absence of the knowledge element required under the amended statute.

Although HB 2274 reduces potential exposure and clarifies the available defenses, Washington remains one of the most active jurisdictions in the country for email marketing litigation. Companies with significant direct-to-consumer marketing operations should continue monitoring developments closely as courts continue to interpret CEMA under the growing body of pre-amendment case law, as well as any emerging developments under the amended statute.

In addition to representing retailers in numerous CEMA class actions in Washington state and elsewhere, Morgan Lewis can help evaluate companies’ current marketing practices and establish appropriate vetting protocols to mitigate litigation risk under the amended statute.