Federal Court Upholds Washington State’s Commercial Electronic Mail Act against CAN-SPAM Preemption Argument

At a Glance

• Washington courts are seeing a surge in class action lawsuits alleging violation of Washington State’s Commercial Electronic Mail Act (CEMA), RCW 19.190.010 et seq., for sending commercial emails with false or misleading subject lines. These lawsuits primarily target false sense of urgency emails (e.g., “Sale Ends Tonight — Save 30%” when the sale continues).
• On January 14, 2026, Judge Robart of the Western District of Washington ruled that the federal CAN-SPAM Act does not preempt this provision and that Washington state law applies to false and misleading email subject lines. Ma v. Nike, Inc., No. C25-1235JLR, 2026 WL 100731 (W.D. Wash. Jan. 14, 2026). This ruling undercuts the preemption defense asserted by numerous corporate defendants seeking dismissal of CEMA lawsuits.
• Given this development, the $500 statutory damages available, and entitlement to treble damages for CEMA violations, businesses — especially retailers — should review their practices for writing email subject lines for Washington State recipients.

CEMA Overview & Recent Case Law Broadening CEMA’s Reach

Originally enacted in 1998, the Commercial Electronic Mail Act (CEMA) prohibits persons from sending Washington State residents commercial emails with subject lines that either (a) misrepresent the identity of the person who sent the email or (b) contain “false or misleading information in the subject line.” CEMA sets statutory damages of $500 per violation, with no need for proof of actual harm (receiving the email itself is the injury). CEMA violations are per se violations of Washington’s Consumer Protection Act, which provides for treble damages.

Previously, companies defending against lawsuits argued that CEMA only prohibited sending false or misleading information in a subject line concerning the “commercial nature of the email message” — whether the email was an advertisement or not. See Chen v. Sur La Table, Inc., 655 F. Supp. 3d 1082, 1092 (W.D. Wash. 2023). In April 2025, in response to a certified question in Brown v. Old Navy, LLC, 4 Wn.3d 580 (2025), the Washington Supreme Court rejected this argument and held that CEMA prohibits sending any false or misleading information in the subject line of commercial emails. Clarifications or limitations in the body of the email do not excuse false or misleading subject lines. Although “mere puffery” is not actionable, “representations of fact — like the duration or availability of a promotion, its terms and nature, the cost of goods, and other facts” in the subject lines of commercial emails are subject to CEMA’s requirements.

New lawsuits for CEMA violations have proliferated since the Brown decision, focusing primarily on subject lines that create false urgency or misrepresent the status of a sale.

CAN-SPAM Preemption Argument — Ma v. Nike, Inc.

In the wake of Brown, defendants in numerous cases filed dismissal motions arguing that CEMA is preempted by the CAN-SPAM Act — a federal law governing use of email to send commercial messages.

In Ma, the plaintiff sued Nike after receiving multiple emails in which the subject line implied a sale or discount was ending soon (e.g., “2 days only: Save up to 50%”) but the sale continued. According to the plaintiff, the email subject lines were false because Nike sent the emails intending to extend the sales and discounts past the stated deadline. Nike advanced the CAN-SPAM preemption argument and sought dismissal of the case.

Judge Robart denied Nike’s motion to dismiss and held that CAN-SPAM does not preempt CEMA. First, he explained that Congress specifically excepted from CAN-SPAM’s preemption clause “any such statute, regulation, or rule [that] prohibits falsity or deception in any portion of a commercial electronic message,” leaving open state regulation of deceptive email marketing practices. Second, Judge Robart rejected Nike’s argument that Congress intended to preserve only traditional state common law fraud theories, finding that the excepting language of CAN-SPAM makes no mention of fraud or tort law. Third, Judge Robart distinguished the Ninth Circuit’s CAN-SPAM preemption decision in Gordon v. Virtumundo, Inc., 575 F.3d 1040 (9th Cir. 2009), because it addressed commercial emails with misleading header information about the sender’s identity — not false or misleading email subject lines.

The Ma decision follows a brief minute order issued last month by Judge Zilly holding that CAN-SPAM does not preempt CEMA’s subject-line provision. To date, no court has held CAN-SPAM preempts this provision. As judges across Washington rule on pending motions, more preemption decisions are expected in the coming weeks and months.

Implications & Action Steps for Businesses

CEMA’s broad liability framework and statutory and treble damages mean businesses nationwide need strong compliance protocols for email campaigns to Washington residents. Companies should consider:

• Segment Washington Recipients. Segment emails intended for Washington residents to focus and streamline compliance review.
• Accurate Subject Lines. Ensure the factual information (e.g., sale dates, discounts, terms) in subject lines are accurate, truthful, and can be substantiated.
• Puffery vs. Fact. Subjective and unverifiable statements (e.g., “Best Deals of the Year”) are generally safe. Factual representations must be accurate.
• Urgency Claims. Avoid claims like “Sale ends today!” unless the sale truly ends that day. Do not create false urgency.
• Monitor Case Law. Stay alert for new state and federal court decisions on CEMA as interpretations may evolve.
• Consult Legal Counsel. Work with counsel to establish compliance programs or if facing accusations of noncompliance.

For More Information

Faegre Drinker has Washington State lawyers who continue to monitor developments in this rapidly evolving area. For further information, please contact the authors.