Dispensary Spam Texts Violated TCPA, Lawsuit Alleges

A Michigan man has filed class action lawsuit against a marijuana company over unwanted dispensary spam texts he and others allegedly received.

Lead plaintiff Dave Theisen accuses AEY Capital LLC, doing business as Gage Cannabis, of violating the Telephone Consumer Protection Act (TCPA) by volleying unsolicited text messages to his cell phone.

As both recreational and medical marijuana use has become legalized in many states, marijuana dispensaries have started using text messages as ways to sell their wares and advertise sales. These businesses must abide by the same TCPA regulations that cover all other types of businesses.

TCPA is a federal law enacted in 1991 to help protect consumers from unwanted telemarketing calls. As technology has advanced over the years, the TCPA has been updated to include the regulation of not only phone calls, but also faxes, voice mails and text messages.

The Federal Communications Commission (FCC) oversees the enforcement of the TCPA and requires that telemarketers refrain from calling or texting any number listed on the National Do Not Call Registry, which currently lists more than 221 million phone numbers, including both land lines and cell phone numbers.

Allegations Against Dispensary Spam Texts

In his lawsuit, Theisen alleges he received numerous telemarketing texts to his cell phone number over the past year. Around March 3, he responded with the word “Stop” to attempt to opt-out of any further dispensary spam texts.

Still, the text messages allegedly continued and they purportedly met the definition of telemarketing because they were written in a way to entice the purchase of goods or services of cannabis products.

The spam texts also allegedly were sent using an automatic telephone dialing system (ATDS), which is equipment that is able to store or produce phone numbers using a random or sequential number generator to send calls or texts.

The TCPA prohibits telemarketing calls or texts being sent to a cell phone number through the use of an ATDS system without the sender first receiving express written consent from the consumer. Theisen claims he did not provide Gage Cannabis with written consent to contact him through such a system.

According to the class action lawsuit, two classes could potentially arise. One set of class members would include any person who received a telemarketing text message to their cell phone from Gage Cannabis within the last four years without providing prior express written consent. The second set of class members would include anyone who continued to receive telemarketing text messages from Gage through the use of an ATDS system even after asking the dispensary to stop sending such messages.

Theisen’s lawsuit further alleges that Gage Cannabis committed the TCPA violations in a willful or knowing manner because the dispensary must have known it had not received prior express consent to send the violating texts.

The unwanted dispensary text messages purportedly attributed to the draining of  Theisen’s phone battery, used up cell phone memory and caused him to waste several minutes reviewing the messages.

The TCPA class action lawsuit seeks a minimum of $500 in damages and $1,500 in statutory damages per unsolicited text message in addition to a court injunction ensuring the marijuana dispensary stops using its ATDS system without consent.

According to the Macomb County Chamber’s website, AEY Capital LLC is a state-licensed medical marijuana company based out of Sterling Heights, Mich., and operates more than 10 provisioning centers, three processing centers and three cultivation sites.

The Dispensary Spam Texts Lawsuit is Theisen v. AEY Capital LLC, Case No. 2:20-cv-11965, in the U.S. District Court for the Eastern District of Michigan.

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If you received an unsolicited text message, ringless voicemail, robocall, and/or a call with a pre-recorded voice from a marijuana dispensary, you may be able to join a FREE marijuana dispensary unwanted text message class action lawsuit investigation.

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This article is not legal advice. It is presented
for informational purposes only.