Text messaging is an effective way to stay in touch with customers and promote deals and new products. Since cannabis businesses are not able to use some of the traditional marketing channels due to rules and regulations surrounding this controlled substance, SMS marketing is a great alternative option. While all businesses are required to follow certain laws when it comes to SMS marketing, the regulations are even stricter for cannabis businesses

In the United States, cannabis is not federally legalized and is listed as a Schedule 1 substance by the Drug Enforcement Agency (DEA). Therefore its marketing is heavily regulated both at the federal level and by individual states. This even includes CBD products that don’t contain THC and other related products.

When it comes to text message marketing for cannabis businesses, there are a few laws and ruling bodies that you need to familiarize yourself with. Keep in mind that the regulations may differ at the state, federal, and carrier levels. So you need to stay up to date on all to ensure compliance. 

Here are a few of the most important regulations to familiarize yourself with:

TCPA

The Telephone Consumer Protection Act (TCPA) was established in 1991 to place strict regulations on telemarketing and solicitation by phone. In more recent years, TCPA has expanded to include text messaging as well. The rules and regulations can be confusing and cannabis businesses need to be extra cautious to avoid legal trouble.

TCPA lists certain language that is considered illegal. Examples of illegal marketing are:

• Transactional language
• Promoting sales or offers
• Implying health benefits
• Promoting recreational use of marijuana
• Marketing cannabis in states where it isn’t legal

TCPA also outlines ways to be compliant. For example, consumers need to give double consent before they can receive text messages. If you have not received direct consent from a customer do not send them text messages. If you have questions about how to be in compliance with TCPA guidelines, please contact an attorney. Make sure to learn the specific laws and regulations of your state before starting to send text messages.

FCC

Federal Communications Commission (FCC) is the governing body that regulates SMS marketing for cannabis businesses. They are the organization that passed and enforces TCPA, and have the ability to fine any business up to $1,500 per unlawful message plus damages and legal fees.

CAN-SPAM

CAN-SPAM Act of 2003 is another federal law that prevents businesses from sending unwanted text messages to customers. Businesses can still send text messages that are related to the transaction but recipients have to opt-in to be able to receive any other messages.

CTIA

In addition to federal and state regulations, Cellular Telecommunications Industry Association (CTIA) also has its own rules. Even though they are not a government organization, they rule over carriers, and not complying with them may result in your carrier suspending your account.

There may also be carrier-specific restrictions. Some carriers have started flagging cannabis-related words. To get around it some cannabis businesses creatively use alternative words or images containing the restricted words to reach customers. Checking in with your service provider is a good idea before starting SMS marketing.

State-Level

There are also state-level regulations that you need to follow. Make sure to research the laws in your state surrounding cannabis marketing before starting a marketing campaign.

Best Practices for Compliance

Cannabis businesses are held to specific regulations for how they can use SMS marketing to reach consumers. Here are some important steps you need to follow to ensure that you are compliant:

• All recipients have to double opt-in before they can receive text messages.

There are several ways you can do this. You can have the option for consent on your website, during check out or have them text a keyword to a certain number to sign up for text messages. Once they opt-in using one of these methods, they will need to confirm their subscription to comply with the double opt-in process. They can either reply back to a message asking them if they would like to receive text messages, or a form could be sent to them that they need to fill out.

• There needs to be an option to stop receiving messages.

Make sure to send recipients clear instructions on how they can opt-out of text messages. Using a certain keyword to reply with is the easiest way to achieve this. Including a message about how to unsubscribe at the bottom of every text message will ensure that you aren’t breaking any rules.

• Include information about SMS marketing in your terms of service. 

This information should be easily accessible on your website. Make sure to consult with an attorney when you are creating or updating your terms of service. 

• Log all of the opt-in and opt-outs.

Having documentation will help you keep track of your contacts and help resolve any disputes that may arise.

• Have a “do not send” list

Similar to a do not call list, a do not send list tracks all of the opt-outs and ensures that you are respecting customers’ requests.

• Do not purchase marketing lists for your cannabis business as this is a violation of FCC regulations.

Remember that all of your contacts have to have double opted-in.

• Confirm the location of all recipients.

Before sending out text messages, ensure that your contacts are not located in a state where cannabis is not legal. Even for customers that have visited your store and opted-in for text messages, you still cannot send them SMS messages if they are located in one of the states that haven’t legalized marijuana.