As businesses increasingly elect to use text messaging to communicate with consumers, they should be mindful that text messages are a frequent target of TCPA claims. FCC regulations require different degrees of consent depending on whether communications are commercial or informational; whereas businesses must have only “prior express consent” for purely informational texts, they must have “prior express written consent” for texts that include an advertisement or constitute telemarketing. (Certain other texts, for example those sent for an emergency purpose, are exempt from those requirements.) That begs the question: what qualifies as advertising or telemarketing such that the higher degree of consent is required?

We previously reported on a court that held that a text message that was sent in order to complete a transaction did not qualify as telemarketing. Recently, a different court found (on a motion to dismiss) that a text message that was sent to a consumer who had registered to be a part of the sender’s rewards program, and that contained a link to download the sender’s app, might qualify as an advertisement.

In San Pedro-Salcedo v. Häagen-Dazs Shoppe Co., No. 17-3504, 2017 U.S. Dist. LEXIS 168532 (N.D. Cal. Oct. 11, 2017), the plaintiff alleged that she received a commercial text message for which she had not provided prior written consent. The text message at issue read: “Thank you for joining Häagen-Dazs Rewards! Download our app here.” Id. at *2. The text was prompted by a visit to a Häagen-Dazs store during which a cashier asked her if she would like to enroll in a rewards program for discounts on future purchases. Id. She alleged that she was asked for her telephone number, which she provided orally. Id. Plaintiff alleged that the text violated the TCPA because it was a “telemarketing or advertising message sent without prior express written consent.” Id. at *3.

Defendants moved to dismiss and argued that the text message could not be construed as advertising or telemarketing because it “does not encourage Plaintiff to purchase property, goods or services.” Id. at *5. In response, the plaintiff argued that the text message advertised the commercial availability of a service—specifically the Häagen-Dazs’ mobile app, which allows the user to find stores, place orders, and receive offers and coupons. Id. at *2-3.

The court denied the motion to dismiss. In doing so, it distinguished two cases in which plaintiffs received similar text messages. The plaintiff in Daniel v. Five Stars Loyalty, Inc., No. 15-3546, 2015 U.S. Dist. LEXIS 159007 (N.D. Cal. Nov. 24, 2015) spoke to a cashier about a rewards program and received a text message prompting him to send his email address to complete his registration for the program. The Five Stars court “held that the text did not include or introduce an advertisement and did not constitute telemarketing.” Häagen-Dazs, 2017 U.S. Dist. LEXIS 168532, at *6. Similarly, the plaintiff in Aderhold v. Car2go N.S., LLC, No. 13-0489, 2014 U.S. Dist. LEXIS 26320 (W.D. Wash. Feb. 27, 2014) received a text message from a car-sharing service asking him to enter an activation code. The Car2go court found that the text was sent “for the limited purpose of permitting plaintiff to complete his registration, and therefore did not violate the TCPA.” Häagen-Dazs, 2017 U.S. Dist. LEXIS 168532, at *6.

In the present case, the court distinguished Five Stars and Car2go because, whereas the texts in those cases were sent in order to complete a registration process, the language of the text the plaintiff allegedly received suggested that she had already joined the Häagen-Dazs Rewards program before the text was sent. Id.The court found that this distinction was critical because, if that was the case, the text message to “‘Download our app . . . arguably constitute[d] an advertisement for the commercial availability of Defendants’ app.” Id. at *7. In considering the alleged facts in a light most favorable to plaintiff, the court denied defendants’ motion to dismiss.

The Häagen-Dazs decision demonstrates the often fine line that some courts have drawn between communications that have a commercial purpose and those that do not. Businesses that rely on text messages to communicate with consumers should take care in considering how a court might construe the purpose for sending such messages, as well as obtaining and maintaining records of the requisite consent for their transmission.