In January, we reported on our efforts with the Washington Retail Association and Benesch Law to bring common sense reform to Washington’s Commercial Electronic Mail Act (CEMA) — a 1998 law originally designed to combat dial-up era spam that has been weaponized into a litigation bonanza against retailers engaged in ordinary email marketing.
This week, we’re pleased to share a significant step forward: the House Committee on Consumer Protection & Business has reported out a substitute version of House Bill 2274, moving the bill closer to a full floor vote.
What happened this week
After extensive stakeholder engagement — including input from the Washington State Attorney General’s Office — the House Committee on Consumer Protection & Business approved an amended substitute bill (HB 2274-S) and reported it out of committee with broad bi-partisan support. The substitute bill reflects a collaborative process to strike the right balance between protecting consumers from genuinely deceptive email practices and shielding responsible businesses from the explosion of abusive litigation that followed the Washington Supreme Court’s Brown v. Old Navy decision last April.
HB 2274 now awaits a vote by the full House. Unfortunately, its Senate companion bill, SB 5976, did not make it out of committee before the cutoff — meaning HB 2274 must pass the House and cross over to the Senate for consideration before the legislature adjourns.
Growing momentum and editorial support
The momentum behind reform continues to build. This week, The Seattle Times published an editorial in support of HB 2274, adding one of the state’s most prominent editorial voices to the growing chorus calling for a legislative fix. The editorial board’s endorsement underscores what retailers, business groups, and consumer advocates have been saying for months: the current interpretation of CEMA has gone far beyond what the legislature ever intended, and the resulting wave of litigation is hurting Washington consumers and businesses alike.
Why this matters
The urgency of this legislation cannot be overstated. Since the Brown v. Old Navy ruling in April 2025, the situation has only accelerated:
• Nearly 80 CEMA lawsuits have now been filed, compared to only eight such cases in the entire history of the statute before the ruling.
• Plaintiffs’ lawyers are targeting everyday promotional subject lines like “Up to 40% off spring styles” and “Fall prep time: save up to 45% off” — the kind of honest marketing emails consumers voluntarily sign up to receive.
• A medium-sized business with an email list of just 5,000 customers could face up to $30 million in potential liability under the current interpretation, even if no recipient was actually harmed — or even opened the email.
• In January, a federal court rejected the CAN-SPAM preemption defense, removing one of the few legal shields businesses had, and making a legislative solution even more critical.
These staggering costs don’t just hit the balance sheets of small businesses — they get passed on to Washington families in the form of higher prices, reduced promotions, and fewer choices. As rising tariffs, inflation, and supply chain pressures continue to squeeze small and mid-sized retailers, this litigation amounts to a hidden tax on consumers at the worst possible time.
What the substitute bill does
The substitute bill reported out of committee this week refines the approach to CEMA reform. At its core, HB 2274 replaces the overly broad “false or misleading” standard — as interpreted by the Brown court — with a more balanced test focused on whether the subject line misled the consumer about the commercial nature of the email. It also addresses the fact that the current litigation is seeking damages on behalf of people who never even knew they received the email, much less relied on it, a loophole that has made CEMA cases so attractive to plaintiffs’ attorneys who stand to profit as much as 33% of any award.
Importantly, HB 2274 does not weaken protections against actual deceptive marketing. No one supports bait-and-switch tactics. The bill simply restores the common-sense principle that a consumer protection law should protect consumers from real harm — not serve as a vehicle for attorneys to extract massive settlements over email subject lines that no reasonable person would find misleading.
What’s next
With the substitute bill now out of committee, the clock is ticking. Because the Senate companion bill (SB 5976) did not advance out of its committee, the path forward runs entirely through the House. HB 2274 must pass the full House and then cross over to the Senate for consideration — all before the legislature adjourns. That makes every day count.
EIA and our coalition partners are focused on securing a House floor vote and building Senate support for the bill when it crosses over. We continue to work closely with legislators, the Attorney General’s Office, and stakeholders across the spectrum to ensure this legislation gets across the finish line.
The bipartisan support for reform, the endorsement from The Seattle Times editorial board, and the collaborative process that produced this substitute bill all give us confidence that Washington’s legislature will act to close this loophole — but urgency is the watchword. We need lawmakers to move quickly before more local retailers are forced to shut their doors.
We’ll continue to provide updates as HB 2274 moves through the legislature. In the meantime, learn more about EIA’s advocacy efforts and how you can get involved.
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