Your “Today Only” Email Might Be Illegal in Washington State

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A Washington State Supreme Court ruling is changing what brands can say in email subject lines.

Picture this: a beauty brand sends an email that says “Flash Sale: Ends Tonight!” But three days later, the same sale is still going on. A clothing brand writes “Today Only: 40% Off Everything” in a subject line, then quietly keeps the deal running through the weekend. These aren’t made-up examples. They’re exactly the kind of marketing moves that can now lead to real penalties for any brand emailing customers in Washington State.

What Happened

In April 2025, the Washington Supreme Court decided Brown v. Old Navy, LLC. The case started with two shoppers and a common complaint: Old Navy had been sending promotional emails with subject lines that promised limited-time sales and special offers, but the deals lasted well past the stated deadlines. Subject lines used phrases like “today only” and “three days only” for sales that kept getting extended.

The shoppers sued under Washington’s Commercial Electronic Mail Act (CEMA). This is a law from 1998 (back in the dial-up days) meant to protect people from misleading commercial emails. Old Navy tried to get the case thrown out. They argued that CEMA only bans subject lines that conceal that an email is an ad. For example, a marketing email with the subject line “Hi There!” that looks like a personal message. A federal court couldn’t find a clear answer under Washington law, so it sent the question to the state Supreme Court.

What the Court Decided

In a close 5-4 vote, the court disagreed with Old Navy. The majority said CEMA’s language is clear: it bans any false or misleading information in a commercial email subject line. Not just information that hides the fact that the email is an ad; any false or misleading statement of fact.

The court’s reasoning was simple: the law says what it says. It bans commercial emails that “contain false or misleading information in the subject line.” There is nothing in the law that limits this to lies about whether the email is an ad.

The four dissenting justices disagreed. They argued that CEMA was meant to be a narrow anti-spam law designed to stop emails that trick people into thinking they’re not ads. They said it was never meant to be a broad honesty standard for everything in a subject line.

One important limit the majority did set: puffery is still okay. That means subjective claims, opinions, and hype (“Best Sale of the Year!”) don’t break the law. Only false or misleading statements of fact cross the line.

Why Fashion and Beauty Brands Should Pay Attention

If your brand sends promotional emails to anyone with a Washington address, this ruling applies to you. It doesn’t matter where your company is based. Urgency-driven subject lines are a go-to move for online and direct-to-consumer brands, and fashion, beauty, and wellness companies use them constantly. “Last chance.” “Ends tonight.” “Final hours.” “Limited edition, almost gone.” These phrases boost open rates, and brands have relied on them for years.

After Brown, subject lines that make factual claims need to be true. The penalties are steep: $500 for each violation (that’s per email, per person who received it), and the person suing doesn’t have to prove they were actually harmed! CEMA violations also automatically count as violations of Washington’s Consumer Protection Act.

Since the ruling came down, more than 30 class action lawsuits have been filed under CEMA in Washington. The claims go beyond just “today only” language. People are also challenging emails that advertise “limited time” deals that get extended, “free gift” offers that actually require a purchase, and percentage-off subject lines that only apply to a small group of products.

The Line Between Puffery and a Problem

The court’s exception for puffery matters, but it’s narrower than many brands might think. Here’s a simple way to look at it.

Puffery (probably fine): language that’s subjective and can’t really be proven true or false. “Our best collection yet.” “Deals you’ll love.” “An incredible lineup.” No reasonable person would take these as hard facts.

Potentially a problem: language that makes a specific, checkable claim that turns out to be wrong. “Sale ends at midnight” when it doesn’t. “Exclusive to subscribers” when anyone can get it. “Today only: 50% off” when the discount runs for a week.

For skincare and beauty brands in particular, think about how this applies to claims about product availability, limited-edition launches, and “selling fast” language. If a subject line suggests something is scarce or has a deadline, the facts need to support it.

What to Think About Going Forward

This area of law is still developing. Brands being sued after Brown are raising arguments about whether federal law (CAN-SPAM) overrides state law and whether the ruling places too much of a burden on companies that operate across state lines. Courts haven’t answered those questions yet, and things could change. That said, a few things are worth thinking about now.

First, take a close look at your existing email sequences and automated campaigns. Many brands build urgency language into templates that run on autopilot. If a subject line promises a deadline, the promotion behind it should actually end when it says it will.

Second, close the gap between your marketing team and legal review when it comes to email copy. Subject lines are often treated as pure marketing calls. After Brown, they also carry legal risk.

Third, real scarcity still works. The ruling doesn’t ban urgency. It bans fake urgency. A brand that runs an actual 24-hour sale can say so. A brand that keeps extending “today only” deals cannot.

The Bigger Picture

The words brands use in their email subject lines are no longer just a marketing question. In Washington State, it’s a legal question with real financial risk. The flood of lawsuits following Brown shows that lawyers are watching closely.

For brands built on trust and attention to detail, this is a chance to bring the same care to customer communications that goes into the product itself. I help fashion, beauty, and wellness brands build strategies that protect both their reputation and their bottom line. If this ruling has you rethinking your email practices, that’s a good sign.

Disclaimer: This post is for informational purposes only and does not constitute legal advice. Reading this post does not create an attorney-client relationship between you and Cloth and Code Legal PLLC. The information provided reflects the law as of the date of publication and may not account for subsequent legal developments. If this ruling affects your brand, consult a licensed attorney in your jurisdiction for guidance tailored to your situation.