California Federal Court Holds that CAN-SPAM Act Does not Preempt State Law Claims

The U.S. District Court for the Northern District of California recently ruled that the federal Controlling Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act) does not preempt California’s Deceptive Commercial Email statute (the Code). Asis Internet Servs. v. Consumerbargaingiveaways, LLC, No. C 08-04856, 2009 WL 1035538 (N.D. Cal. Apr. 17, 2009). In this case, the plaintiffs sued email advertising companies for violating § 17529.5 of the Code, alleging that the companies sent emails containing (i) third-party domain names without the permission of the third party; (ii) falsified, misrepresented, or forged header information; and (iii) subject lines that would likely mislead a recipient about a material fact regarding the message’s contents. The defendants moved to dismiss the case on grounds that that § 7707(b)(1) of the CAN-SPAM Act preempted the plaintiffs’ claims. Section 7707(b)(1) of the CAN-SPAM Act preempts any state statute, regulation, or rule that expressly regulates the use of electronic mail to send commercial messages, unless the statute, regulation, or rule prohibits “falsity or deception.” The defendants interpreted the phrase “falsity or deception” to mean that the plaintiffs needed to plead fraud in order to make a valid claim under the California Code. The court disagreed, finding that the defendants’ interpretation conflicted with the statute’s plain meaning. According to the court, the phrase must have a broader meaning than simply fraud, because if Congress had meant for it to mean only fraud, it simply would have used the word fraud. The court concluded that the phrase encompasses general false advertising wrongs in addition to fraudulent claims. As a result, the court held that the plaintiffs sufficiently pled false advertising and the court denied the defendants’ motion to dismiss the § 17529.5 claims.