A Cut Above Cannabis Telemarketing Text Messages TCPA Class Action

The cannabis industry has now tried out telemarketing. The complaint for this class action alleges that Hobby Farms, LLC, doing business as A Cut Above, sent telemarketing text messages for its products to consumer cell phones, in violation of the Telephone Consumer Protection Act (TCPA).

Two classes have been proposed for this action:

• The No Consent Class is all persons who, from October 25, 2014, were sent a text message on behalf of A Cut Above using an automatic dialing system for the purpose of solicitation, and for whom A Cut Above claims that either (a) it did not obtain prior express written consent or (b) it obtained it in the same manner as for Stinnett in this case.
• The Do Not Call Registry Class is all persons in the US who, from October 25, 2014, were sent a text message on behalf of A Cut Above, more than once in a twelve-month period, when the person’s number had been listed on the National Do Not Call Registry for at least thirty days, for the purpose of selling A Cut Above’s products and services, for whom A Cut Above claims that either (a) it did not obtain prior express written consent or (b) it obtained it in the same manner as for Stinnett in this case.

Congress passed the TCPA to protect consumers from a flood of telemarketing brought about by new telecommunications technology, such as automatic dialing systems. 

Of particular concern were telemarketing calls to consumer cell phones, because cell phone owners normally pay for incoming as well as outgoing calls. Under the TCPA, advertisers cannot place telemarketing calls to consumer cell phones using automatic dialing systems or artificial or prerecorded voices unless they have the cell phone owners’ prior express written consent. “Calls” include calls, text messages, and voice messages.

In this case, plaintiff Denise Stinnett received three text messages on her cell phone from A Cut Above, a cannabis dispensary with multiple locations in Colorado. The messages came in between November 24, 2017 and December 23, 2017.

The first message began, “All bud $14 1/8, wax $15/g; $400/oz, Live Resin as low as $25/g…” The second announced a “Live Resin Sale!” offering “CSC $25/$30, Absolute Terps $25 and $30/$35, CRX $30/$35 while supplies last…” The final one began, “All top and mid sheld $99/oz or $15 1/8 now through 12-24” and wished her “Happy Holidays…” Clearly, these messages were telemarketing intended to sell the products of A Cut Above.

Stinnett claims she has never given A Cut Above her express written consent to receive advertising calls or messages. She has also been on the Do Not Call Registry established by the TCPA since March 2014.

According to the complaint, the impersonal and generic nature of the messages indicate that they were sent using an automatic dialing system. 

Article Type: Lawsuit
Topic: Consumer
Tags: TCPA, Unsolicited Text Messages, Use of Automatic-Capable Dialer