In recent years, federal and state courts in Washington have seen dozens of putative class actions alleging violations of Washington’s Commercial Electronic Mail Act (CEMA). In light of this explosion in litigation, the state legislature enacted the first major amendment to CEMA since the law’s enactment in 1998. Effective June 11, 2026, these amendments change the requirements to state a claim and the statutory damages available for violations of the statute.
What is CEMA?
Among other things, CEMA prohibits the transmission of a “commercial electronic mail message” or a “commercial electronic text message” to Washington state residents containing false or misleading information in the message’s subject line. RCW 19.190.020(1)(b).
Violations of CEMA can carry significant statutory damages. As originally enacted, violations could result in damages amounting to $500 or actual damages, whichever is greater. RCW 19.190.040(1). A violation of CEMA also constitutes a per se violation of the state’s Consumer Protection Act. RCW 19.190.030.
What changed?
The recent amendments made two significant changes:
- Knowledge requirement: The amendments impose a higher threshold for establishing that a sender “knew” the subject line was false or misleading, as required to state a claim under CEMA. Under the newly amended statute, violative subject lines require actual knowledge or “knowledge fairly implied on the basis of objective circumstances.” RCW 19.190.020(1)(b).
- Reduction in statutory damages: Statutory damages were significantly reduced from $500 to $100.
What do businesses need to know?
Key takeaways for companies relying on email marketing include:
- Substantial damage exposure remains: Even with the reduction in statutory damages, violations can still incur significant liability where a business sends a high volume of emails to Washington residents.
- The amendments apply prospectively: The amended statute went into effect on June 11, 2026, and apply only prospectively regardless of when the claim arose. The prior version of the statute governs claims filed before the amendment’s effective date.
- Examine email subject lines: Ensure that email subject lines are independently accurate and defensible, even without reference to the body of the email.
- Ensure substantiation: Given the changes to the knowledge requirement to state a claim under CEMA, consider maintaining records such as sales calendars to substantiate the good-faith basis for the content of the email subject lines.
Ashurst Perkins Coie has extensive experience litigating class-action cases in Washington’s state and federal courts. If you have any questions concerning the developments discussed in this article, please contact members of Ashurst Perkins Coie’s CEMA team.
