In May we covered the wave of class action lawsuits filed under Washington’s Commercial Electronic Mail Act, or CEMA, after the state Supreme Court’s decision in Brown v. Old Navy held that the law’s ban on false or misleading subject lines applies to any factual claim about a sale’s duration, availability, price, or terms, with no requirement that the email body correct it. At the time, roughly 115 lawsuits had been filed against retailers over subject lines that promised a sale was “ending tonight” when a similar promotion ran again days later. That number has since climbed toward 200.
On March 23, 2026, Washington Governor Bob Ferguson signed House Bill 2274, a legislative response aimed directly at slowing that litigation wave. The amendment took effect June 11, 2026. It is a real change to the law, and it is also, according to the attorneys tracking the litigation closely, nowhere near enough to make the underlying risk go away.
What HB 2274 Actually Changed
Two changes matter most.
Statutory damages dropped from $500 to $100 per violation. CEMA claims are brought as class actions, so the per-email multiplier still matters enormously against a list of any size, but the ceiling on exposure for a given campaign fell by 80 percent.
A knowledge requirement replaced strict liability. The original statute prohibited subject lines that contain false or misleading information, full stop. HB 2274 amended that standard to require the sender had actual knowledge, or knowledge fairly implied from objective circumstances, that the subject line was false or misleading when it was sent. Under the old strict-liability standard, intent was irrelevant. Under the new standard, a plaintiff has to show the retailer knew, or should reasonably have known, the claim was not true.
Both changes only apply going forward. Lawsuits filed on or after June 11, 2026 are governed by the amended statute, even when the emails at issue were sent earlier. Lawsuits already filed before that date are not affected at all.
The Rush to File Before the Deadline
That cutoff produced a predictable reaction. Plaintiffs’ firms filed a burst of new CEMA actions in the weeks before June 11 specifically to lock their claims into the old strict-liability standard with $500-per-violation exposure, before the more favorable rules for defendants took hold. Law firms tracking the docket describe this as exactly the kind of rush you would expect when a statute is about to become materially harder to sue under.
Why Attorneys Are Calling This a Speedbump, Not a Roadblock
The knowledge requirement sounds like meaningful protection until you look at how it is likely to be litigated. “Knowledge fairly implied from objective circumstances” is not the same bar as proving a retailer set out to deceive anyone. A plaintiff can point to internal marketing calendars, prior campaigns using near-identical urgency language for a promotion that then repeated, or a pattern of similar subject lines across multiple sends, and argue that the pattern itself implies knowledge. Discovery into a retailer’s own campaign scheduling and creative approval process becomes the central battleground instead of a side issue.
The reduced damages figure changes the settlement math, not the underlying exposure. A $100-per-violation claim against a list of a few hundred thousand recipients is still a number large enough to make defending through trial the more expensive option in most cases. Washington’s amendment narrows the target. It does not remove it, and California’s Business and Professions Code Section 17529.5, which imposes its own restrictions on false or misleading email advertising, remains untouched by anything Washington’s legislature did.
There is also the preemption question sitting underneath all of this. In January 2026, a federal judge in the Western District of Washington ruled in a case against Nike that the federal CAN-SPAM Act does not preempt CEMA, because Congress specifically carved state laws that prohibit falsity or deception in commercial email out of CAN-SPAM’s preemption clause. That ruling removed what had been one of the more promising defense arguments in this entire line of litigation, and it predates HB 2274 by two months. The legislative fix arrived only after the door to a federal preemption defense had already closed.
What This Means If You Send Marketing Email
Do not treat the Washington amendment as resolved risk. It changes the standard for future filings in one state. It does not touch pending litigation, it does not affect California claims, and it leaves open a knowledge-based theory that experienced plaintiffs’ counsel are already positioned to argue around.
Audit subject lines against your actual promotion calendar, not against how the copy reads in isolation. The Brown decision and everything that followed it turns on factual claims: a stated end time, a stated discount, a stated scarcity. If your subject line says a sale ends tonight, your promotion calendar needs to show it actually does.
Keep a documented record of promotion timing decisions. Under a knowledge-based standard, your internal documentation becomes evidence either for you or against you. A clear record showing a promotion genuinely ended when the email said it would is a real defense. A campaign calendar showing the same “final hours” language reused every week is not.
Watch for similar legislative activity in other states. Washington moved first because it had the most litigation. California, Maryland, and other states with their own commercial email statutes are the next places this fight is likely to move.
Where This Connects to Email Authentication
Subject-line compliance and DMARC enforcement sit in different legal categories, but they answer to the same underlying question: can the people receiving your email trust what your domain sends them. A retailer defending a CEMA class action over misleading urgency claims is making the case, in court, that its email program is trustworthy in substance. A domain without DMARC enforcement is failing to make that case at the infrastructure level before a single subject line is ever read. Mailbox providers already weigh authentication consistency, spam complaint rates, and engagement patterns as reputation signals, and a program generating regulatory attention over deceptive content is a program at elevated risk of generating the complaint volume that damages deliverability for every future send.
The Takeaway
HB 2274 is a genuine legislative win for retailers, and it is also proof that the CEMA litigation wave was significant enough to force a state legislature to intervene within a year of the triggering court decision. Attorneys who represent defendants in this space are telling clients not to stand down. The damages ceiling is lower. The path to liability is narrower but still open. And the rush of lawsuits filed in the final weeks before the amendment took effect shows that plaintiffs’ counsel has no intention of walking away from this area of law.
Excello Mail keeps your domain’s authentication consistent and enforced, so the technical trust signal behind every campaign matches the standard your marketing content needs to meet. Sign up for free to Excello Mail and build your email program on a foundation that holds up to scrutiny at every layer.