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If your inbox has ever shouted "Last Chance!" only to whisper "Extended One More Day" the next morning, you're not alone. And neither are the marketers behind those messages, who now find themselves facing a recent wave of litigation targeting what plaintiffs call a "false sense of urgency" in email subject lines.
Subject Line Showdown
Retailers and other companies are facing lawsuits under state anti-spam laws for subject lines like "Final Sale," "Today Only," and "Ends Tonight," especially when those sales are extended shortly thereafter. Email subject lines containing perpetual discounts or free offers are also being targeted. Plaintiffs argue that these messages mislead consumers and violate the law, primarily Washington's Commercial Electronic Mail Act (CEMA), which prohibits "false or misleading information in the subject line."
Why Now?
This most recent wave of litigation in Washington was prompted by an April 2025 opinion that expanded the interpretation of CEMA's misleading subject provision. As noted in our earlier blog, a narrow majority of the Supreme Court of Washington concluded that the law prohibits any false or misleading information in the subject line – and not, as the defendants had argued, only misleading information as to the commercial nature of the underlying message.
Issues We're Watching
- CAN-SPAM Preemption. Several cases are testing the scope of CAN-SPAM preemption. While CAN-SPAM generally overrides state laws, it includes a savings clause for statutes that prohibit falsity or deception. Defendants argue that the narrow exception only applies to traditional torts like fraud. And because plaintiffs' CEMA claims often do not allege materiality, reliance, actual injury, or deceptive intent (elements required for fraud), they do not satisfy the exception and are preempted.
- Constitutional Challenges. Some defendants have argued that CEMA violates the dormant commerce clause by regulating conduct beyond Washington's borders.
- Similar Claims Before the NAD. We are monitoring how other challenges to "urgency" claims play out. For example, the National Advertising Division (NAD) recently recommended that Renpho US discontinue or modify its "Limited Time Deal" claim to ensure any limited-time offer is genuinely limited and that a reasonable amount of time passes before similar claims are made again. Although the challenge wasn't specific to email subject lines, the decision still offers useful insight into how such claims might be evaluated.
- Arbitration Clauses. In a case against Rugs.com, the court denied a motion to compel arbitration because users subscribed to emails without agreeing to the site's Terms of Use containing the arbitration clause.
- Expansion Beyond Washington? We have started to see plaintiffs testing a similar theory in California under California's Business & Professions Code § 17529.5, which bars subject lines that mislead "about a material fact regarding the contents or subject matter of the message." Often these allegations have come in the form of pre-suit demands, but it will be interesting to see how similar theories play out should these matters proceed to litigation.
Practical Takeaways for Marketers
- Audit Your Subject Lines: Take a close look at email subject lines, particularly for residents in Washington and California. Consider avoiding affirmative claims in the subject line, opting for puffery instead. Use language that makes clear that additional details (about the offer, sale, etc.) can be found in the body of the message itself.
- Review Subscription Flows: Consider requiring agreement to Terms of Use (including an arbitration clause) when users sign up to receive emails.
- Watch the NAD: The Renpho decision shows that urgency claims are being targeted even outside the courtroom.
As courts (and plaintiffs' counsel) scrutinize email marketing practices, now is a good time to revisit your campaigns. Because when it comes to misleading subject lines, "Act Fast!" might be more than just a tagline – it could be a legal risk.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
