Weeks after a similar ruling across the state, another Washington federal judge has ruled that the state's antispam statute is constitutional and comports with U.S. law, allowing customers to move forward with their proposed class action accusing beauty retailer Ulta of bombarding shoppers with misleading email advertisements.

U.S. District Judge Rebecca L. Pennell's denial of Ulta's motion to dismiss the case comes as dozens of other lawsuits filed under Washington's Commercial Electronic Mail Act, or CEMA, wend their way through Washington courts following state justices' expansion of the law in April. Ulta and other defendants have protested, saying the 1998 statute runs afoul of the Constitution's dormant commerce clause and is preempted by the federal CAN-SPAM Act, but Judge Pennell on Friday rejected both arguments.

"CEMA is not preempted by CAN-SPAM and does not violate the dormant commerce clause," the judge said. The plaintiffs in the case have plausibly pled that Ulta's emails violated CEMA and Washington's Consumer Protection Act, she said.

Ulta attempted to ditch the suit on the grounds that CEMA was superseded by the CAN-SPAM Act, which regulates commercial email and explicitly preempts similar state laws. But Judge Pennell said CEMA falls within a narrow carve-out in CAN-SPAM for state laws that prohibit "falsity or deception."

"A number of courts have considered and rejected this argument," she said of Ulta's defense, pointing to recent district court rulings against Nike, FullBeauty Brands and others. "The court agrees with these decisions."

Judge Pennell also rejected that the two laws were in conflict with each other.

"There is no obstacle to businesses complying with both CAN-SPAM and CEMA," the court said. "Because CAN-SPAM specifically allows for state regulation of false or deceptive emails, plaintiffs' CEMA claim does not undermine Congress' intent in enacting CAN-SPAM."

As for CEMA's constitutionality, Judge Pennell pointed to a 2001 Washington Supreme Court holding in State v. Heckel that CEMA doesn't violate the dormant commerce clause.

"There have been no cases or changes of law since Heckel which suggests a different result," the judge said, adding that the U.S. Supreme Court in a 2023 ruling in National Pork Producers Council v. Ross "rejected similar arguments regarding a per se violation of the dormant commerce clause."

CEMA doesn't discriminate against out-of-state businesses, Judge Pennell ruled, noting that the law's restrictions apply equally to in-state and out-of-state email senders.

"Further, in expressly giving the states the right to regulate false and misleading email transmissions," she said, "Congress was apparently satisfied state legislation would not impose an undue burden on interstate commerce."

The court also rejected Ulta's claim that CEMA improperly regulates conduct occurring outside of Washington, for example, if a non-Washington business sent a marketing email to a Washington resident attending college in California.

Such a hypothetical "ignores that CEMA regulates activities targeting Washington residents, who remain Washington residents even if they are temporarily out of state," Judge Pennell ruled.

In response to Ulta's arguments that it is burdensome to identify Washington residents to avoid penalties under CEMA, the court said "increased costs to comply with state regulation alone do not suffice to establish a substantial burden on interstate commerce."

Washington's attorney general intervened in the case to defend CEMA's constitutionality, saying Ulta's arguments "misunderstand federal constitutional law and the operation of the interconnected modern economy."

"Like many state laws, CEMA's protection may, at times, have a practical effect on people or companies outside Washington," the state said in a Feb. 3 filing, "but that occasional extraterritorial impact does not offend the United States Constitution."

Judge Pennell's order Friday separately lifted a stay on discovery in the case, which had been put in place pending the court's ruling on Ulta's motion to dismiss.

Plaintiffs Selay Shahpur and Lindsey Smith filed the suit against Ulta Salon, Cosmetics and Fragrance Inc. in June, claiming the company barraged Washington customers with emails that used tactics such as time-limited deals that were later extended "to create a false sense of urgency in consumers' minds."

Ulta filed a motion to dismiss in October.

On the other side of the state, a Seattle federal judge on Feb. 12 similarly ruled CEMA constitutional and not preempted by federal law as part of a lawsuit against clothier FullBeauty Brands. In that decision, U.S. District Judge Thomas S. Zilly ruled that the company failed to articulate "any way in which CEMA inhibits out-of-state commercial emailers differently from those inside Washington."

"Moreover, if FullBeauty took care not to include any false or misleading information in the subject lines of its electronic messages, then it would not need to shoulder any 'burden' of determining whether the emails were going to Washington residents," he wrote.

Counsel for the parties and representatives for the Washington office of the attorney general did not immediately respond to requests for comment Monday.

The customers are represented by Walter M. Smith of Smith & Dietrich Law Offices PLLC, J. Gerard Stranch IV and Michael C. Tackeff of Stranch Jennings & Garvey PLLC, Lynn A. Toops, Natalie A. Lyons and Ian R. Bensberg of CohenMalad LLP and Samuel J. Strauss and Raina C. Borrelli of Strauss Borrelli LLP.

Washington is represented by Robert Hyde, Ben Brysacz and Clair McNamara of the Washington office of the attorney general.

Ulta is represented by Markus W. Louvier and Stephanie A. Crockett of Evans Craven & Lackie PS and Craig C. Martin, Amanda S. Amert, Debra Bogo-Ernst and Melanie L. Lee of Willkie Farr & Gallagher LLP.

The case is Shapur et al. v. Ulta Salon, Cosmetics and Fragrance Inc., case number 2:25-cv-00284, in the U.S. District Court for the Eastern District of Washington.