Leaving a thin slice: CAN-SPAM does not completely preempt Washington state law

Plaintiff Gordon sued defendant Impulse Marketing, an apparent source of unwanted email. Gordon brought the lawsuit in federal court, but alleged violations of the state of Washington’s Commercial Electronic Mail Statute, RCW §19.190 et seq. and Washington’s Consumer Protection Act, RCW §19.86 et seq.

Impulse moved to dismiss, arguing that the federal CAN-SPAM Act, 15 U.S.C. §7701 et seq., preempted the state statutes under which Gordon had brought the suit. The court rejected Impulse’s argument and denied the motion.

By its own terms, the CAN-SPAM Act “supersedes” any state law that “expressly regulates the use of email to send commercial messages.” 15 U.S.C. §7707(b)(1). That same provision, however, states that the Act does not supersede state laws to the extent that those laws “prohibit falsity or deception” in an email message or its attachments.

The court looked at the prohibitions of the Washington statutes and concluded that the plain language of the CAN-SPAM Act did not support Impulse’s preemption argument. The state Commercial Electronic Mail Statute prohibits “misrepresentation” and the use of “false or misleading information” in the course of sending email messages. The state Consumer Protection Act makes it illegal to send an email message with “false or misleading information in the subject line.” Accordingly, the CAN-SPAM Act did not preempt these provisions, as they serve to prohibit “falsity or deception.”

Gordon v. Impulse Marketing Group, Inc., 2005 WL 1619847 (E.D. Wash., July 11, 2005).