As the cannabis industry continues to expand, attacks have begun on direct marketing (text, call, etc.) campaigns undertaken by cannabis-related businesses. Cannabis advertising is heavily regulated, so many cannabis companies rely on direct marketing to consumers—often in the form of text messaging. But technology has outpaced the federal statutes regulating telemarketing, leaving marketers uncertain as to what is and is not permitted under existing laws.
This uncertainty potentially leaves consumer-facing cannabis companies open to attack by resourceful plaintiff’s attorneys claiming violations of the Telephone Consumer Protection Act (TCPA) and the Americans with Disabilities Act (ADA).
The TCPA was enacted in 1991 to combat a rising tide of invasive and unwanted telemarketing calls and faxes. The Act limits the use of automatic dialing systems, prerecorded voice messages and fax machines and has been expanded to cover calls to cell phones and text messaging, neither of which were prevalent when the statute was enacted. It was intended generally to restrict automated or prerecorded (robo) calls unless the receiving party consents to receive the call or when the call is made for emergency purposes.
The TCPA distinguishes between marketing and non-marketing calls, requiring different types of consent based on the purpose of the communication. A marketing call includes an advertisement or other communication intended to encourage a purchase or the like. (Although payment reminders, confirmations, informational messages and service calls are not considered telemarketing, if a dual-purpose call includes a marketing intent, the call is treated as a marketing call.)
Transparency is Key
Marketers can ensure TCPA compliance by obtaining appropriate consent from the called party. For non-marketing calls or texts to a cell phone, implied consent is sufficient under the TCPA. Implied consent recognizes that if a customer provides their cell phone number, then they expect to be called or texted at