Being in health care doesn’t exempt a company’s texts from the TCPA. The FCC’s health care carve-outs cover messages about a patient’s care, such as appointment reminders and prescription notices. A text pitching a weight-loss program or a GLP-1 subscription is telemarketing, and it carries the same Do Not Call and opt-out exposure as any retailer’s promotion. Telehealth companies that keep the two kinds of messages apart have much stronger defenses.
Do the TCPA’s health care exemptions cover telehealth marketing?
Only in part. One carve-out excludes marketing outright, and the other depends on HIPAA’s definitions.
The first is in the rule for autodialed and prerecorded calls to cell phones. Under 47 C.F.R. § 64.1200(a)(2), a telemarketing call made with an autodialer or a prerecorded voice needs prior express written consent unless it delivers a health care message made by or on behalf of a HIPAA covered entity or its business associate, as the HIPAA Privacy Rule defines those terms. Whether a message is a “health care” message depends on HIPAA’s definitions, which can reach some communications about a patient’s own treatment and medications.
The second is narrower. Section 64.1200(a)(9)(iv) exempts certain free-to-the-patient calls and texts from healthcare providers, but only if they meet every condition, including that they “must not include any telemarketing, solicitation, or advertising.” The permitted purposes are listed: “appointment and exam confirmations and reminders, wellness checkups, hospital pre-registration instructions, pre-operative instructions, lab results, post-discharge follow-up intended to prevent readmission, prescription notifications, and home healthcare instructions.” A promotional offer isn’t on the list. The exemption also covers only messages made by or on behalf of healthcare providers, sent at no charge to the patient and with no billing or other financial content, and it excuses only the consent requirement for those calls. A telehealth platform should be able to show it sends the messages on a provider’s behalf.
The firm’s earlier post on the TCPA’s healthcare exemption walks through each condition. The point for direct-to-consumer health brands is simpler: the exemptions protect care messages, not growth campaigns.
When is a health text “telemarketing”?
When its purpose is to get someone to buy something, including a subscription, a consult, or a refill plan.
The FCC’s rules define telemarketing as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services,” under § 64.1200(f)(13). That covers a text inviting a lead to start a GLP-1 program, a promotion for a cheaper monthly plan, and a message to a past patient urging them to come back. A text that confirms an appointment the patient already booked usually isn’t telemarketing.
The hard cases are mixed messages. A refill reminder that adds a pitch for a new compounded option invites the argument that it’s a sales message in part. Courts look at the message’s purpose and content, and the firm’s post on dual-purpose calls and texts explains how that analysis usually runs. The safest course is to keep care messages free of offers, and send offers only to people who agreed to receive them.
Does the Do Not Call Registry apply to health brands?
Yes, for any message that is a telephone solicitation.
The Registry rule bars telephone solicitations to a “residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry,” under § 64.1200(c)(2). The rule has no exception for health care marketers. The exceptions that matter are permission and an established business relationship, which runs from a purchase or transaction within the prior 18 months, or an inquiry or application within the prior three months.
That three-month inquiry window is where telehealth lead funnels get into trouble. A person who filled out an eligibility quiz in March and never booked a visit is outside the window by July. A promotion to that person’s Registry-listed number in August needs separate permission. Weight-loss and hormone-therapy brands may run long nurture sequences to unconverted leads, and those sequences should check the inquiry date before every send. A quiz hosted by a third-party lead generator may not create a relationship with the seller at all, because the relationship runs to the entity whose products the person asked about. The rule also excuses a Registry call that results from error if, as part of its routine business practice, the seller has written Do Not Call procedures, trains its staff on them, keeps an internal do-not-call list, and uses a Registry version obtained “no more than 31 days prior to the date any call is made,” under § 64.1200(c)(2)(i). The seller must also keep records documenting that process and must not use the Registry data for any other purpose. That is why the Registry version date belongs in the file.
Whether a text is a “call” for a private Do Not Call suit is disputed. In Steidinger v. Blackstone Medical Services, a case over marketing texts from a medical-services company, the Seventh Circuit held in July that texts aren’t calls under § 227(c)(5), and district courts in four other states have followed it. Two California district courts have declined to. The defense is worth raising in a texts-only case, but the FCC’s rules apply to texts either way, so a compliance program should treat the Registry as covering them.
What consent do AI-voice and prerecorded health calls need?
Prior express written consent, for marketing. Most texts don’t trigger this rule.
Section 64.1200(a)(2) requires prior express written consent for telemarketing calls to cell phones made with an autodialer or an artificial or prerecorded voice. The written-consent definition requires a signed agreement, which can be electronic, that “clearly authorizes the seller to deliver or cause to be delivered to the person called advertisements or telemarketing messages.” The agreement must also identify the number the messages may go to and disclose that signing authorizes those calls and isn’t a condition of purchase.
After the Supreme Court’s 2021 decision in Facebook v. Duguid, an autodialer must use a random or sequential number generator, so many texting tools may not qualify, depending on how they select numbers. The exposure for ordinary marketing texts is mostly under the Do Not Call and opt-out rules. For AI-voice outreach to leads, the safer assumption is that the written-consent rule applies in full, and a lead form that doesn’t name the seller is a weak record.
How fast must a telehealth company honor STOP?
Within a reasonable time not exceeding ten business days, and some replies count automatically.
Section 64.1200(a)(10) treats a text reply of stop, quit, end, revoke, opt out, cancel, or unsubscribe as a reasonable way to revoke consent, and requires revocations to be honored “within a reasonable time not to exceed ten business days from receipt of such request.” Health brands that use separate platforms for clinical messaging and marketing need both systems reading the same opt-out list, or the marketing platform will keep texting a patient who opted out on the clinical side. The firm’s post on texts sent after a STOP reply covers those claims.
| Message type | Rule that governs it | Consent needed | Do Not Call rules apply? |
|---|---|---|---|
| Appointment reminder or lab-result notice to a patient’s cell | § 64.1200(a)(9)(iv) if all conditions are met | None beyond the exemption’s conditions | No, if it isn’t a solicitation |
| Prerecorded or AI-voice “health care” message from a HIPAA covered entity | § 64.1200(a)(2) health care carve-out | Prior express consent, not written | Depends on content |
| Promotional text about a program, plan, or discount | § 64.1200(c), (d), (e) | Permission or an active established business relationship for Registry numbers | Yes |
| Prerecorded or AI-voice marketing call to a cell phone | § 64.1200(a)(2) | Prior express written consent | Yes |
Exposure under each rule is per violation. 47 U.S.C. § 227 allows up to $500 per violation, or the actual loss if greater, for Do Not Call claims, and $500 per violation or the actual loss, whichever is greater, for claims over prerecorded or artificial-voice calls. A court may increase either up to three times the amount if the violation was willful or knowing. A Do Not Call plaintiff must also have received more than one violating call within 12 months, and the statute gives an affirmative defense to a business that “has established and implemented, with due care, reasonable practices and procedures to effectively prevent telephone solicitations in violation of the regulations prescribed under this subsection.”
What to gather when a health-marketing text claim arrives
A telehealth company’s best defense is usually its own message classification: which texts were care messages, which were marketing, and what consent supported each. California businesses facing these suits can read more about TCPA defense attorneys in California and how these cases proceed.
- Hold the messaging logs, campaign settings, and the consent and intake records for the claimant’s number.
- Pull opt-out replies and internal do-not-call entries from both the clinical and marketing platforms, with dates.
- Export the Registry scrub records and the Registry versions each campaign used.
- Collect contracts with lead sources and messaging vendors, plus the message templates and any AI-voice scripts or audio.
- Get legal advice before replying to a demand, contacting the claimant, or offering credits or refunds.
HIPAA and state health privacy laws raise separate questions when a lawsuit seeks message content, so the litigation hold and any document production need planning for both.
Questions telehealth companies ask about TCPA texts
Is a refill reminder for a GLP-1 prescription a marketing text?
A reminder about a prescription the patient already has is a care message and may fit the healthcare provider exemption if every condition is met. A reminder that also pitches a new plan or a discount invites the argument that it’s partly marketing. Courts look at what the message is trying to accomplish, so keeping offers out of care messages is the cleaner practice.
Does an online eligibility quiz create permission to text?
It can. For Registry-listed numbers, the Registry rule requires permission in a signed, written agreement that names the company and includes the number to be texted. An inquiry alone supports an established business relationship for only three months, which matters for Registry-listed numbers.
Are telehealth platforms liable for texts their partner clinics send?
Possibly. The Do Not Call private right of action in 47 U.S.C. § 227(c)(5) belongs to a person who received “more than one telephone call within any 12-month period by or on behalf of the same entity,” so a platform whose brand appears in the message may be named. Liability depends on general agency principles, which is why platform-clinic agreements should assign responsibility for consent records and opt-outs.
Does HIPAA compliance satisfy the TCPA?
No. HIPAA governs how health information is used and disclosed. The TCPA governs calls and texts. A message can comply with HIPAA and still violate the Do Not Call or opt-out rules. The (a)(9)(iv) exemption requires HIPAA compliance as one of several conditions, and the (a)(2) carve-out borrows HIPAA’s definitions.
Defending health-marketing text claims
If your company has been sued over promotional texts to patients or leads, how each message was classified and what consent supported it usually decide the case. Rosenberger + Kawabata represents businesses defending TCPA lawsuits and class actions through its business litigation practice, including claims involving telehealth and other health-marketing texts. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is 47 U.S.C. § 227. The FCC’s rules, including the health care carve-outs in paragraphs (a)(2) and (a)(9)(iv), the definitions, and the revocation rule, are at 47 C.F.R. § 64.1200.
This post is general information about the Telephone Consumer Protection Act and related laws as of November 3, 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.