Many businesses treat email marketing compliance as beginning and ending with CAN-SPAM, largely because the federal statute broadly preempts state laws regulating commercial email. However, recent lawsuits show that compliance procedures must contemplate state email laws too.
Plaintiffs have increasingly relied on laws in states such as Washington, California, and Maryland to challenge marketing emails that contain misleading subject lines, misleading sender information, or promotional claims that do not match the actual offer. As a result, email campaigns that may once have been viewed as ordinary marketing practices are now being heavily scrutinized by both consumers and courts.
Subject Lines Are Under Scrutiny
One of the biggest litigation trends revolves around subject line content. These lawsuits target promotional emails containing statements such as, “Ends Tonight,” “Today Only,” or “Final Hours,” when the same promotion continues after the stated deadline. Courts have allowed these claims to move forward based on the theory that recipients can be misled by the subject line itself, even if the details are clarified elsewhere in the email.
Takeaway: Subject lines must be accurate and substantiated, particularly when using urgency-driven or time-sensitive claims. If a promotion is not truly ending or will continue beyond the stated timeframe, businesses should avoid subject lines that suggest otherwise.
Sender Identity and Domain Practices
We’re also seeing litigation trends that focus on more than just the subject line. Plaintiffs are challenging email campaigns based on sender names, domain names, routing information, and whether recipients can easily identify who actually sent the email. Courts have repeatedly distinguished between technical email issues and practices that are genuinely deceptive.
Takeaway: Businesses should ensure that emails clearly identify the sender and avoid using domains or sender names that could create confusion.
Undisclosed Conditions on “Free” Offers
Recent lawsuits are also targeting promotional emails advertising “free gifts” or special offers in which the email fails to disclose material conditions that the consumer must meet in order to claim the promotional offer. Plaintiffs are closely examining marketing claims and whether consumers receive a complete and accurate picture of the stated offer.
Takeaway: Businesses should take particular care when using terms such as “free,” “complimentary,” “exclusive,” or similar promotional language, ensuring that any material conditions, limitations, or qualifications are clearly disclosed in close proximity to the offer and remain consistent throughout both the subject line and body of the email.
Before You Hit Send: 7 Considerations
For most marketing teams, the good news is that many of these risks can be avoided through strong compliance procedures and careful review before launch:
- Treat every subject line as if it will be read on its own, without clarifying language in the body of the email.
- Avoid false urgency claims such as “Last Chance” or “Ends Tonight” unless they are literally true.
- Make sure “free” or other promotional offers do not contain undisclosed material conditions.
- Use sender names and domains that clearly identify your business.
- Include a functioning unsubscribe mechanism in marketing emails.
- Honor opt-out requests promptly.
- Avoid using third-party brands, domains, or identities without authorization or to mask sender identity.
The overall trend is clear: recent email marketing lawsuits are less about traditional spam and more about whether a reasonable recipient could be misled by a promotion, subject line, or sender identity. Businesses that prioritize transparency and accuracy in their email campaigns are generally in the best position to reduce risk and avoid becoming the next target of litigation.
Email marketing compliance requires more than a CAN-SPAM checklist. If you’d like help auditing your email initiatives against these emerging state law risks, we can help. Reach out to discuss a compliance review for your next campaign.
*Adham Hamed contributed to this post.
