The Why, When & How Of Obtaining User Consent Before Sending SMS

The most common question we get is whether businesses can legally text message their customers? Here’s what we have to say to it – user consent isn’t complicated, but it is necessary.

In 2012 Papa John’s had to pay over $16 million to settle a class action lawsuit brought against them for failure to get proper user consent.

Before we go any further we’d like to give you a little background on the requirements for complying with the consumer protection act.

Express Prior Consent

When it comes to text marketing, businesses are required to collect consent from mobile phone owners before they send text messages to them. The prior written consent may include electronic or digital forms of signature, website form submissions or text message opt-ins.

Consider the following points when soliciting consent –

  • The consumer consent should be unambiguous, meaning it should be clear to the customer that they will receive marketing messages on their mobile number.
  • When asking from your contacts for consent you must disclose, “By participating, you consent to receive text messages sent through an automatic telephone dialling system.”
  • The disclosure must be made clear to your contacts before they opt-in to your SMS service.

Even text messages that are merely informational require consent. Here are some ways customers can give consent and opt-in to receive text messages from you:

  • Send a keyword to a shortcode
  • Enter a phone number on a web form online
  • Sign up at a physical location

Not A Condition Of Purchase

The contacts should be made well aware that their consent is not a condition of making a purchase. It simply means just because someone purchases from your organization they are not bound to give their consent to receive a text message from your organization. You must disclose “Consent to these terms is not a condition of purchase.”

Remember, if you’ve not disclosed the above two things of consent and not a condition of purchase when collecting your customer’s mobile phone numbers, or didn’t disclose those two things in a “clear and conspicuous” manner, you cannot text message them.

Jiffy Lube sent text messages to their customers to get their permission, and it ended up costing them $47M in the largest text message spam lawsuits to date.


The guidelines require the option of offering your contacts the ability to opt out at any time.

When a contact sends STOP, STOPALL, UNSUBSCRIBE, CANCEL, END or QUIT to one of your numbers, you can prevent them from receiving any additional messages until that contact responds START. They receive a message like

“You have successfully been unsubscribed. You will not receive any more messages from this number. Reply START to resubscribe.”

And when that contact resubscribes, they receive a message saying:

“You have successfully been resubscribed to messages from this number.

Reply STOP to unsubscribe.”

Sending Timeframe

Transactional messages can be sent any time of the day while Promotional messages can be sent between 9 AM to 9 PM in the time zone of your recipient.

Record Keeping

It is advisable to maintain each contact’s consent for at least 4 years from the date they give it to protect your organization against any future disputes.

Here’s the information you need to include in your SMS marketing messages. This revolves around a few things.

  • Message & Data Rates
  • HELP & STOP commands
  • Message Frequency
  • Terms and Conditions
  • Privacy Policy

Want to know what happens when you text message your contacts without disclosing the above two things –

  • Your customers may be granted a private right of action in a local court.
  • A state may initiate a civil action against your business on behalf of its citizens.


Regardless of how users signed up, your very first text must be a compliance message confirming opt-in. It should reiterate some important information, including:

  • Your identity
  • Message frequency
  • The fact that message and data rates may apply
  • How to opt out

SMS is an effective marketing tool and as long as you follow the consent guidelines you are good to go.


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Pallavi Jaisinghani

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