Over the course of the past year, a wave of opportunistic class action lawsuits filed under the Washington Commercial Electronic Mail Act (CEMA) has engulfed courts in that state, sweeping dozens of retailers and consumer brands in its wake. This litigation surge was largely triggered by a landmark Washington Supreme Court ruling in April 2025.
On March 23, 2026, Governor Bob Ferguson signed House Bill 2274 into law. Enacted to address the litigation surge, HB 2274 modestly amends CEMA to narrow liability and reduce damages for email marketers, but these amendments do not eliminate litigation risk—particularly for misleading subject lines.
Seeing as HB 2274 took effect on July 11th, 2026, now is a good time for email marketers to review CEMA and understand how the amendments to the law can affect their campaigns.
Background: The CEMA Litigation Surge
Washington’s CEMA, codified at RCW 19.190, has long prohibited deceptive commercial email sent from a computer in Washington or to addresses the sender knows (or has a reliable basis to know) are held by Washington residents. It restricts practices such as misrepresenting the point of origin or transmission path and using false or misleading subject lines, and historically has provided statutory damages per violating email plus Consumer Protection Act (CPA) exposure,
First enacted in 1998, CEMA triggered a huge litigation surge in Washington courts thanks to the Washington Supreme Court decision in Brown v. Old Navy, LLC (April 17, 2025), which dramatically broadened the reach of CEMA by treating any false or misleading subject line as both a CEMA violation and a per se CPA violation, without requiring that the misstatement be material to the underlying transaction. In practice, this meant that routine promotional puffery or minor inaccuracies in subject lines (e.g., urgency language, discount framing) could be framed as statutory CEMA violations and leveraged into high‑volume litigation campaigns, significantly heightening marketers’ compliance risk.
Shortly after the Brown decision was announced, dozens of putative class actions flooded into Washington courts. According to an Ecommerce Innovation Alliance analysis, 75 such cases were filed in the six months following Brown, which led to the Washington legislature to take up HB 2274.
HB 2274: The Legislative Response
In response to the litigation surge following Brown, the Washington Legislature enacted HB 2274, “Modifying the Washington commercial electronic mail act,” which Governor Bob Ferguson signed into law on March 23, 2026. The act took effect on June 11, 2026, and represents the first major revision to CEMA since its original 1998 enactment. The amendments alter the structure of CEMA in three major ways:
1. A Higher bar for Misleading Subject Lines: Under the old rule, plaintiffs argued that almost any technical inaccuracy in a subject line could be a violation. HB 2274 tightens this standard. The amended statute now requires that a subject line:
- Be likely to mislead a reasonable recipient about a material fact related to the transaction; and
- Do so based on the sender’s actual knowledge or knowledge that can be “fairly implied” from objective circumstances.
In practical terms, this means that there is now a knowledge component—plaintiffs must point to what the sender knew or reasonably should have known when they chose the subject line. Therefore, the focus shifts to what would mislead a reasonable consumer about something that actually matters (for example, whether there is really a 50% discount, or whether a “last day” sale is actually ending).
While this does not give marketers a free pass to stretch the truth, it effectively moves the law away from “gotcha” claims based on minor wording issues and toward clearly deceptive subject lines. Careful review and good documentation of your offers remain essential.
2. Lower Statutory Damages: HB 2274 also lowers the statutory damages available to individual consumers. Before the amendment, consumers could seek $500 per violating email (or their actual damages, if higher). Now, that statutory amount is reduced to $100 per violating email.
For businesses facing lawsuits involving thousands or tens of thousands of emails, this change meaningfully reduces potential exposure—even though the numbers can still add up quickly in a class action setting.
3. Narrower CPA Connection: Previously, CEMA violations were explicitly treated as per se violations of Washington’s Consumer Protection Act, making it easier for plaintiffs to seek broader CPA remedies on top of CEMA’s per‑email damages. HB 2274 removes this automatic link for subject-line cases, so not every alleged CEMA issue automatically becomes a CPA claim. That said, plaintiffs can still attempt to bring CPA claims under general “unfair or deceptive” theories, so the risk has been reduced, not eliminated.
The new law applies to all lawsuits filed on or after June 11, 2026, regardless of when the underlying emails were sent. Cases that were already on file before that date generally proceed under the old, more plaintiff‑friendly version of CEMA.
What Marketers Should do Now
Even with HB 2274, Washington remains a high‑risk state for email marketing. Practical steps for marketing teams include:
- Tighten subject-line review. Avoid “false urgency” (for example, “ends tonight” when you regularly extend a sale) and ensure discount claims and time limits match what your promotion teams actually plan to do.
- Document your offers. Keep records that show the factual basis for claims in your subject lines (pricing approvals, promotion calendars, legal sign‑off). This helps demonstrate your good‑faith knowledge if challenged later.
- Coordinate with legal and compliance. Treat Washington as a high-risk jurisdiction. Have a defined review path for campaigns that will be sent to Washington residents, especially large, national email blasts.
- Watch for copy reuse. Subject lines that were safe under CAN‑SPAM alone may still present risk under CEMA, even after HB 2274. Apply Washington standards when reusing or modifying older high‑performing lines.
While it represents a welcome narrowing of CEMA’s post-Brown liability, HB 2274 is intended as a stabilization measure, not a wholesale rollback. Litigation is likely to continue, but with somewhat less extreme exposure and a clearer focus on truly misleading campaigns.
