Daily deal texts are one of the main ways dispensaries reach repeat customers, and they’re covered by the same federal TCPA rules as any retailer’s marketing texts. State legalization doesn’t change that. California adds its own layer: a licensee has to confirm a customer is 21 or older before direct marketing, and every ad has to carry the license number. A dispensary that builds both requirements into one sign-up step, and keeps the records, is in a much better spot when a demand letter arrives.
Does the TCPA apply to a licensed dispensary?
Yes. The TCPA regulates calls and texts by any business, and the Supreme Court said in Campbell-Ewald Co. v. Gomez (2016) 577 U.S. 153 that “A text message to a cellular telephone, it is undisputed, qualifies as a” call under the statute’s cell phone provision. A dispensary’s promotional texts are marketing messages for TCPA purposes, whatever the product.
Two sets of FCC rules matter most. Autodialed or prerecorded marketing needs prior express written consent under the FCC’s rule, though after the Supreme Court narrowed the autodialer definition in Duguid many platforms fall outside that provision. The Do Not Call rules apply to any “telephone solicitation” regardless of equipment, and they’re where most dispensary text claims are likely to focus.
What does California require before a dispensary texts a customer?
Age affirmation, before the first message. Business and Professions Code § 26151(c) covers advertising or marketing that involves direct, individualized communication with a customer, and it requires “a method of age affirmation to verify that the recipient is 21 years of age or older before engaging in that communication or dialogue controlled by the licensee.” A text sent to one customer’s phone fits that description. The statute says the method “may include user confirmation, birth date disclosure, or other similar registration method.”
The state’s regulation spells out the sign-up step. Section 15041 of title 4 of the California Code of Regulations says “A licensee shall use a method of age affirmation before having a potential customer added to a mailing list, subscribe, or otherwise consent to receiving direct, individualized communication or dialogue controlled by a licensee.” The same regulation lists “telephone” and “electronic” communication among the covered forms. Separately, section 26151(a)(1) requires that “All advertisements and marketing shall accurately and legibly identify the licensee responsible for its content,” including at least the license number.
These are licensing rules, not TCPA rules, and a violation of them doesn’t create a TCPA claim by itself. But they shape the evidence. A sign-up flow that asks for a birth date and captures marketing consent in the same step gives the dispensary one clean record that answers both questions.
Where do dispensary text programs run into TCPA trouble?
Four places come up most often.
Loyalty sign-ups at the counter. A budtender who enters a phone number into the point-of-sale system to apply a discount hasn’t necessarily captured written consent for marketing. Unless the customer signed something that authorizes marketing texts and names the dispensary, the record may not hold up. The post on text-to-join and double opt-in covers sign-up methods that create a cleaner record.
Late-night deals. The FCC’s rule bars telephone solicitations to a residential subscriber “before the hour of 8 a.m. or after 9 p.m. (local time at the called party’s location).” An afternoon promotion is fine. A last-call deal scheduled for 9:15 p.m. isn’t, and campaign tools set to the store’s time zone can miss customers who live elsewhere.
Opt-outs that don’t stick. Under paragraph (a)(10), replies like “stop,” “quit,” and “unsubscribe” are reasonable ways to revoke consent, and replies in other words count too “if a reasonable person would understand those words to have conveyed a request to revoke consent.” A dispensary that switches text platforms and doesn’t carry over its opt-out list can text people who already said no.
Old lists. Numbers collected years ago, or before the current platform, often have no consent record at all, and the post on whether TCPA consent expires addresses what to do with dormant customers before a new campaign goes out. Running an old list through the current sign-up flow, with a fresh consent request and age check, costs a few lost contacts and removes most of the risk.
| Issue | Federal rule | California cannabis rule | What the records should show |
|---|---|---|---|
| Sign-up | Written consent for autodialed marketing, plus the Do Not Call exclusions | Age affirmation before adding to a list | Birth date or age confirmation and consent captured together |
| Message content | Advertising or telemarketing | License number on all marketing | Template showing the license number |
| Timing | No solicitations before 8 a.m. or after 9 p.m. local time | None specific | Send logs with recipient time zones |
| Opt-out | Revocation by any reasonable method | None specific | Opt-out logs carried across platforms |
Can carriers block dispensary texts even with consent?
They can, and that’s a separate risk from TCPA liability. Wireless carriers and texting platforms have their own content rules for cannabis, and a campaign can be filtered or suspended even when every recipient consented. Registration and filtering are covered in the post on carrier texting rules and 10DLC registration. A blocked campaign isn’t a TCPA violation, but a dispensary that switches to an unregistered workaround to get around filtering often ends up with weaker consent records, too.
Dispensaries also tend to rely on outside marketing vendors for these programs. The vendor’s platform holds the consent and opt-out data, so the contract should give the dispensary access to it on demand. When a dispensary changes vendors, it should export the full consent and opt-out history, with the age records, before the old account closes, because a platform that deletes data at the end of a contract can leave the business unable to prove the consent it actually collected. Delivery services that text customers about orders face the same rules for any message that adds a promotion, so an order update with a coupon attached should be treated as marketing.
That access is often the first thing TCPA defense attorneys in California ask about when a claim arrives.
What to collect when a customer sues over dispensary texts
- Put a hold on the text logs, platform and campaign data, and the sign-up records showing consent and age affirmation for each number.
- Pull the opt-out and internal do-not-call logs with dates, including any from a prior platform.
- Pull the National Do Not Call Registry scrub records and the version dates used for each campaign.
- Gather the marketing vendor and platform contracts, the message templates, and any prerecorded or AI-voice files.
- Talk to a lawyer before replying to the demand, contacting the customer, or offering store credit to settle.
Questions about cannabis text marketing
Does federal illegality affect a dispensary’s TCPA exposure?
The TCPA’s text applies to calls and texts by any person or business, and nothing in it exempts a business because of what it sells. A dispensary should assume the statute applies to its marketing texts the same way it applies to any retailer’s. The defenses are the usual ones too, such as consent, the established business relationship for Do Not Call claims, and the equipment used.
Is a birth date field enough for age affirmation?
California’s statute lists “birth date disclosure” as one acceptable method, along with user confirmation and similar registration methods. A birth date field at sign-up, completed before the customer is added to the text list, fits that description. The safer course is to keep the age answer and the consent record together, with a timestamp, so both can be produced if a claim is filed.
Can a dispensary text customers who signed up for a loyalty program?
It can text them about the program, and it can send marketing if the sign-up captured the right consent. A loyalty enrollment that only collects a phone number for discounts may not be written consent to marketing texts. Adding a separate consent statement naming the dispensary, plus age affirmation, before the customer is enrolled makes the program much easier to defend.
What’s the risk of texting after 9 p.m.?
The FCC’s rule bars telephone solicitations to residential subscribers before 8 a.m. or after 9 p.m. in the recipient’s local time. A plaintiff will try to count each late message separately, so a recurring late campaign adds up quickly. Scheduling campaigns by the recipient’s area code or address, not the store’s clock, is a simple fix.
Defending claims over dispensary texts
If your dispensary or delivery service has been sued over promotional texts, the sign-up records and the platform’s opt-out and send-time logs usually decide whether the claim has merit. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving retail deal texts. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The FCC’s rules are at 47 C.F.R. § 64.1200. California’s cannabis advertising rules are at Business and Professions Code § 26151 and Cal. Code Regs., tit. 4, § 15041.
The court decision is Campbell-Ewald Co. v. Gomez (2016) 577 U.S. 153.
This post is general information about the Telephone Consumer Protection Act and related laws as of April 11, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Courts and the FCC change the rules in this area often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.