Email marketing in California: Beware of anti-spam laws

by Kelsey Banerjee Jul. 06, 2021

Because of its low costs and flexibility, email marketing is a core component of many businesses’ customer outreach. However, startups and other businesses in California need to take care not to run afoul of the state’s strict consumer protection and anti-spam laws.  

These laws can create significant litigation risks and threaten heavy penalties. In the recent case Greenberg v. Digital Media Solutions, No. A158854 (Cal. App. June 21, 2021), the plaintiffs sought $1,000 per email for 282 emails as well as attorney fees and other relief. 

In Greenberg, the plaintiffs alleged that Digital Media Solutions (DMS)’s third-party marketing partners violated a provision of California’s False Advertising Law (Cal. Bus. & Prof. Code § 17500 et seq.) — specifically, Cal. Bus. & Prof. Code § 17529.5(a), which is related to false advertisements in emails. In relevant part, that statute makes it unlawful to send an email advertisement that “contains or is accompanied by falsified, misrepresented, or forged header information” (§ 17529.5(a)(1)) or “has a subject line that a person knows would be likely to mislead a recipient, acting reasonably under the circumstances, about a material fact regarding the contents or subject matter of the message” (§ 17529.5(a)(2))

The Greenberg plaintiffs alleged that DMS’ marketing partners:

  • Used the subject line “<Username>, please confirm your extended warranty plan,” which misleadingly suggested that the customer had a preexisting business relationship with the marketer; and
  • Sent the emails from a domain that did not identify a recognizable or traceable entity.

The trial court rejected these arguments, sustaining DMS’s demurrer and dismissing the case. On appeal, the Court of Appeals affirmed in part and reversed in part.

As to the email subject lines, the Court of Appeals held that the demurrer was properly sustained because the plaintiffs challenged the subject lines under Bus. & Prof. Code § 17529.5(a)(2), and the term “header information” in that statute does not include subject lines.

The court held that the trial court erred in sustaining the demurrer as to the senders’ domain names. The plaintiffs adequately alleged that “the domain names were essentially made-up and untraceable.”

The Greenberg case serves as a valuable reminder for California businesses that they must ensure that their email marketing campaigns — including campaigns run by third-party marketing partners — are consistent with California consumer protection and anti-spam laws. Here are a few best practices for email marketing:

  1. Be clear and truthful in each email’s subject line, headers, and body.
  2. Clearly identify the business that is sending the email.
  3. Monitor your marketing partners’ methods to ensure that they are not misleading.
  4. Ask your law firm to audit your advertising practices to ensure that you comply with California’s consumer protection and false advertising laws.

The case is Greenberg v. Digital Media Solutions, LLC, No. A158854 (Cal. App. June 21, 2021)

Rushing McCarl LLP helps California businesses resolve disputes, mitigate legal risks, and protect their rights and hard-won assets.