Subject Line Liability: The Rising Risk of Deceptive Email Marketing

If your business uses email marketing to reach consumers and you’re compliance-minded, you’re no doubt paying attention to the content within those emails. But crafting the best subject line, one that’s compelling enough to entice the consumer to open the email, can also be putting you at risk.

A growing wave of lawsuits is targeting businesses for deceptive email subject lines, alleging violations of state consumer protection laws. If your company uses promotional emails, this trend should be on your radar.

The Legal Landscape: CAN-SPAM and UDAP Laws

The federal CAN-SPAM Act prohibits false or misleading header information and requires that subject lines accurately reflect the content of the message. But what many businesses overlook is that state consumer protection laws often go further, especially those based on Unfair and Deceptive Acts and Practices (UDAP) statutes. These laws can allow for private rights of action and statutory damages in varying amounts but often up to $1,000 per deceptive message.

Deceptive subject lines that omit key limitations – like “10% off everything in the store” when certain items such as gift cards are excluded – can trigger litigation. And since courts tend to interpret ambiguity in favor of consumers, even if the business didn’t intend to mislead, that means a single mishandled email campaign can result in a 6- or 7-figure class action exposure.

Case in Point: Old Navy and Nike Get Caught in the Crosshairs

Washington state appears to be leading the charge in this area. Earlier this year, the Washington Supreme Court ruled in Brown v. Old Navy that the state’s Commercial Electronic Mail Act (CEMA) prohibits any false or misleading information in subject lines—not just misrepresentations of the email’s commercial nature. In doing so, the court rejected Old Navy’s argument that a subject line violates CEMA only when it misleads consumers about the email’s subject or purpose; instead, any false or misleading information in a subject line constitutes a violation of CEMA.

Old Navy had used phrases like “Today Only” and “Three Days Only” to promote sales that lasted longer than advertised, creating a false sense of urgency. The court rejected the retailer’s defense and clarified that puffery (such as “Best Deals Ever!”) is not actionable, but misstatements of fact are.

Similarly, Nike is facing a proposed CEMA violation class action for allegedly using deceptive urgency in subject lines to drive sales. The complaint claims Nike’s emails misled consumers about the duration and availability of promotions in order to pressure them into making more immediate purchase decisions.

Best Practices to Reduce Your Risk

Consider these best practices to keep your subject lines consumer-friendly and compliance-focused:

1. Be Precise and Transparent
   Avoid vague or exaggerated claims. If a promotion excludes certain items or has quantity limits, disclose that clearly in the subject line.
2. Distinguish Puffery from Fact
   Subjective phrases like “Amazing Deals” are generally safe. But factual claims, like “Free Shipping Today Only,” must be accurate and substantiated.
3. Review and Vet Campaigns
   Implement a compliance review process for all email campaigns. Legal and marketing teams should collaborate to ensure subject lines meet regulatory standards.
4. Monitor State Law Developments
   Remember, state laws vary widely and may impose stricter requirements than federal law. Stay informed and adjust your practices accordingly.
5. Train Your Team
   Training on email compliance, including subject line accuracy, is essential for marketing and legal teams alike.

Deceptive subject lines are not just a marketing faux pas—they’re a growing litigation risk. With courts and regulators taking a harder stance, businesses must treat email compliance as a strategic priority. The key is to think carefully about how your message might be interpreted – and how that interpretation could expose your business to legal risk.

Have questions about your email marketing? We can help.