A federal court in the Western District of Washington denied a motion to dismiss a putative class action alleging violations of Washington’s Commercial Electronic Mail Act (CEMA) and related Consumer Protection Act (CPA) claims. CEMA remains a viable vehicle for challenging allegedly deceptive email marketing practices, is not preempted by federal law, and survives dormant Commerce Clause scrutiny.
Background
Plaintiff alleged that a national retailer violated CEMA by sending marketing emails with false or misleading subject lines. The State of Washington intervened to defend the constitutionality of its statute.
CEMA prohibits the transmission of commercial emails to Washington residents when the sender “knows, or has reason to know” the recipient is a Washington resident and the email contains “false or misleading information in the subject line.” A CEMA violation constitutes a per se unfair or deceptive act under Washington’s Consumer Protection Act (CPA), and statutory damages of $500 per violation are available.
Knowledge of Residency. Defendant argued that plaintiff failed to adequately plead that the company knew or had reason to know she was a Washington resident. The court disagreed, finding it plausible that defendant acquired plaintiff’s IP address and location data through first-party tracking technologies such as cookies and web beacons, as well as through third-party analytics partnerships with companies like Adobe, Google, Meta, and Epsilon Data Management. The court emphasized that CEMA imposes both actual and constructive knowledge standards, distinguishing cases that required proof of actual disclosure of protected information.
Falsity of Subject Lines. Plaintiff alleged four categories of misleading subject lines, including: (1) illusory time limits on promotions (e.g., “today only” or “ends tonight” when the sale was extended the next day); (2) false implications of existing orders (e.g., “Your Easter Dress Order Just Shipped!” when no order was placed); (3) misrepresentations about “sitewide” availability; and (4) sham pricing for advertised discounts. The court found these allegations sufficiently pleaded, rejecting defendant’s argument that the limited examples suggested innocent error rather than intentional deception.
Federal Preemption. Defendant contended that CEMA is preempted by the federal CAN-SPAM Act. The court held that CAN-SPAM expressly permits states to prohibit “falsity or deception” in commercial email messages, and CEMA’s subject-line restrictions fall squarely within that carve-out. The court also rejected the argument that CEMA claims must satisfy the heightened pleading requirements of common law fraud, noting that CEMA claims do not sound in fraud.
Dormant Commerce Clause. Defendant argued that CEMA unconstitutionally regulates conduct outside Washington’s borders in violation of the dormant Commerce Clause. The court rejected this challenge, relying on the U.S. Supreme Court’s decision in National Pork Producers Council v. Ross and finding that CEMA applies evenhandedly to in-state and out-of-state businesses, does not discriminate against interstate commerce, and does not impose a substantial burden on commercial activity.
JULIE ANNE KEMPF, on behalf of herself & all others similarly situated, Plaintiff, & STATE OF WASHINGTON, Intervenor, v. FULLBEAUTY BRANDS OPERATIONS, LLC, Defendant., No. C25-1141 TSZ, 2026 WL 395677 (W.D. Wash. Feb. 12, 2026).
