What is required in promotional messaging?

SMS messages, mobile phone and earth in reference to entertainment law

If you are involved in promotional messaging you should ensure you meet the requirements. Such requirements include:

  1. Express Written Consent 

Without more, sending text messages to people without their consent is against the law. Under the TCPA, companies cannot send messages to consumers without their express written consent. Companies must obtain express written consent to add subscribers to their subscription list. It is important to note that “written” does not mean the consent has to be handwritten; a digital agreement is enough. However, the agreement cannot be verbal. Express written consent is not just for new contacts, but for all contacts. This applies even if a person has already provided their phone number, and even if the person has a relationship with the company. This is because an individual who gives their cell phone number to a company does not equate to the individual consenting to promotional messages. Also, if you are importing contacts from some other source, make sure to always double-check that you have consent before uploading. 

  1. Clear and Conspicuous Disclosure 

Consumers who opt for SMS marketing campaigns should receive clear and conspicuous disclosure of the text messages they will receive. Such consenting language must not be hidden and must provide the individual with a clear and visible disclosure of what the user is consenting to and whom he is consenting to obtain it. 

For example, when shopping at store, the cashier may ask you if you would like to enter your phone number for a discount. However, when entering your phone number, you have the option to check a box that states, “I would like to receive promotional messaging to my listed cell phone number.” Clicking this box at the cashier counter is your express written consent to promotional emails that is clear and conspicuous. This box clearly states to consumers that, if checked, they will be receiving promotional marketing messages from said store to their provided phone number. Oftentimes, these messages are overlooked by consumers and are checked off without actually being read. This leads to overflowing emails and a vast amount of “spam” mail, as most people like to call it. To avoid this, make sure you are reading what you agree to and more importantly, that it is clear to you what you are consenting to. 

Additionally, consumers must agree to receive messages on their mobile device. In consenting, the TCPA wants the consumer to accept and consent to whether it agrees to receive one-time messages, or a recurring message campaign.

  1. Pre-recorded calls 

It is not illegal for a company to call its customers for marketing purposes. However, a real person must be on the line. It is a violation of the TCPA to use pre-recorded voice messages without that person’s prior express consent to be called. If a company, without prior express written consent, calls a cell phone using a pre-recorded message for marketing purposes, that constitutes a violation of the TCPA. 

In order for businesses to be able to call residential numbers with artificial or pre-recorded voice technology, they must also have the express prior written consent of the party being contacted.

  1. Other Restrictions 
  • Purchasing contact lists

It is expressly forbidden to purchase contact lists and send them text messages. An individual or entity cannot buy lists of phone numbers and add them as subscribers. As a company or organization, it is vital that you never buy a list of phone numbers. 

  • Proprietary Material

An individual or entity may not submit copyrighted or trademarked material that is not licensed for use. 

  • Regulated Language

An individual or entity may not send confidential information, threats of violence, hate speech, graphic violence, sex, alcohol, firearms, or tobacco. 

  • Do Not Call List

An individual or entity may not call those listed in the “Do Not Call List”

How can I make sure I am following promotional messaging laws?

To ensure you are complying with the law, make sure your promotional messaging campaigns include the following: 

Express Written Consent: Obtain written authorization from all your contacts. Never send a message to someone who has not given their express consent to be contacted, and always store completed forms in a safe place for your reference. Additionally, ensure to save consents, because it is the duty of the sender in a TCPA lawsuit to prove the sender sent a promotional message with the consumer’s prior express consent.

Promotional Materials (Call to Action): A “Call to Action” is a message, usually promotional, that invites the person to sign up for your SMS campaign. Such a message should consist of the following: 

  • Express Written Consent – Informing the consumer that they must first agree to receive automated marketing messages. It is important to make sure this is clear on your Call to Action. 
  • Purpose of the Campaign – Informing subscribers what they are signing up for. Be sure to always include a reference explaining to consumers that texting a keyword or sharing their phone number, implies joining an SMS marketing list and that the messages you will receive are:
  • Marketing/promotional; 
  • Sent via an automatic dialer and; 
  • The agreement to receive the automatically marked promotional text message is not a condition for any purchase. 
  • Campaign Value – Including an idea of the purpose of the messages whether it is for coupons, flash sales, major updates or anything else. 
  • Message Frequency – Informing the consumer as to whether they will receive one message, such as a coupon, or if they are signing up for a recurring message campaign. 
  • Message and Data Fees – Informing users whether they may have to pay a small fee to receive text messages. 
  • Terms and Conditions – Listing all terms and conditions in their entirety below the Call to Action or providing a link. 
  • Privacy Policy – Listing the privacy policy in its entirety below that of the Call to Action or providing a link. 

EPGD Business Law is located in beautiful Coral Gables, West Palm Beach and historic Washington D.C. Call us at (786) 837-6787, or contact us through the website to schedule a consultation.

*Disclaimer: this blog post is not intended to be legal advice. We highly recommend speaking to an attorney if you have any legal concerns. Contacting us through our website does not establish an attorney-client relationship.*

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