Deceptive Subject Lines

Three recent laws (Washington, California and Maryland) are going to see Email Marketers rethinking their subject lines. While they vary somewhat in application, all three laws will inspire class action lawsuits for deceptive subject lines.  In Washington State, the penalty is $500 per email to a Washington State resident. Similarly, $500 per email for Maryland residents and $1,000 per email for California residents.  

There are some nuances (it's a little harder file in Maryland, California adds a twist to make it more difficult to get the case thrown out - but also caps the penalties at $1m per suit) but it all boils down to: does the subject line contain a provable falsehood? Doesn't matter if there's a caveat or legal disclaimer in the body of the email, does the subject line by itself contain a falsehood?

The examples fall into seven main categories:

1. Your subject line implies eligibility or pre-qualification

You claim “You qualify for…” or “You’re eligible for…” or “Reserved for you” but you haven't actually determined their eligibility or everyone qualifies. 

2. Your subject line says it's free but it's not

Your subject line suggests there's no cost, but there is a cost or other strings attached. It's not truly free. ("Free with purchase" is a big one.)

3. Your subject line promises savings or discount that might not be available

You tell readers they can “Save 25%” but the email says most won't qualify or you say “biggest savings of the year” when there's evidence of larger sales in the past year. It's ok to be vague, but if you make a claim, the claim must be accurate and it must be available to all.

4. Your subject line implies a deadline or urgency 

Your subject line says “Ends tomorrow” or “Last chance” or “Final hours” but it's not the last chance - the deal is honored after the indicated deadline or it was quietly extended or the aforementioned deadline mentioned doesn't apply to all recipients or website visitors. 

This is easy to prove by simply witnessing the deal still exists after the deadline.

5. Your subject line implies scarcity

Your subject line says “Only a few left” or “Limited quantities” or “Selling out fast” but the ofer is digital (unlimited) or you don't actually know how much inventory remains (or you know there's lots of inventory left).

For physical goods, it may be more of a challenge to prove without access to inventory or without monitoring the website over a sustained period of time to show continued availability.

6. Your subject line lies or makes a claim that isn't proven or misleads the reader

Your subject line says you're the "best" or "most popular" (compared to your peers) or suggests a ranking that doesn't actually exist. 

Your subject line suggests the email was supposed to be an internal email that was accidentally sent to subscribers.

Your subject line implies an error, correction, apology or retraction when you didn't actually make a previous public error.

7. Your subject line implies personalization or makes the reader think it's transactional when it's not

Note: This is more specific to California or nationwide via CAN-SPAM, but it's good to keep in mind. 

Your subject line suggests that the email is a "Re:" (reply) or "Fw:"/"Fwd:" (forward) when it's just a marketing email.

Your subject line makes the reader think it's a receipt or transactional message but it's just a promotional message.

Your subject line makes the reader think it's in service to their account or membership but is actually just a promotional message.

To sum... don't be a deceptive marketer. People who feel misled vote with the "unsubscribe" or "this is spam" button. Build a long-term relationship with your readers, don't try to get one over on them. It's not clever, it's frustrating and we see you. 

AI helped me with the research on this article and AI created the image inspired by Parks & Recreation.