Author: Travis Bouche
June 29, 2020
There is nothing more annoying than getting a random phone call from a number and it turns out to be telemarketing automation. You may think to yourself, “how the heck did they even get my phone number?”. The Federal Telephone Consumer Protection Act (TCPA) was passed by Congress in 1991, as a statute prohibiting the making of any call to a cellphone or residential landline using an automatic telephone dialing system or an artificial or prerecorded voice without the prior express consent of the called party. Additionally, the TCPA prohibits sending unsolicited advertisements via fax, unless the recipient has an established business relationship with the sender or voluntarily provides their fax number. Although today fax machines are not utilized like they once were, text messages are similar to faxes and the rules would apply.
Therefore, marijuana establishments need to be careful when they are getting creative with telemarketing. Violating the TCPA can leave a dent in a cannabis establishment’s pockets, with a penalty between $500 to $1,500 for each call, text, or fax. The majority of cannabis establishments’ marketing efforts rely on text-based campaigns direct to consumers, so it is impossible for these establishments to avoid potential liability. However, there are steps a cannabis establishment can take to avoid violating the statute.
First, a cannabis establishment must always obtain prior express written consent. Second, cannabis establishments must have a record of revocations of consent so they don’t send a message to a customer who opted-out of receiving text messages. Moreover, cannabis establishments have to be careful of reassigned numbers because even if the previous holder of the number gave their express consent it does not carry over. Thirdly, be careful with third-party marketers, as you may still be liable for TCPA violations for texts sent on their behalf. Lastly, get appropriate insurance that covers TCPA-related claims. So, think twice before you send that text, as “messaging and data rates may apply”, coupled with many other possible TCPA violations and fines.
Photo Credit: Maria_Savenko | Adobe Stock