Text messaging has become one of the most effective tools in restaurant marketing. A well-timed offer can fill tables on a slow Tuesday, and loyalty texts keep regulars coming back. But texting has also been a steady source of class-action litigation under the Telephone Consumer Protection Act. A July 14 decision from the 7th U.S. Circuit Court of Appeals, which covers Illinois, Indiana and Wisconsin, changes part of that picture.  The ruling helps with one type of claim. It leaves several others in place.

In Steidinger v. Blackstone Medical Services, a consolidated class action,  the plaintiffs received marketing texts and calls promoting home sleep tests. Some kept receiving texts after replying “STOP” or after registering their numbers on the National Do Not Call Registry. They sued under the TCPA’s do-not-call provision and under the Florida Telephone Solicitation Act. The trial court dismissed the case, concluding that the federal-do-not-call claim did not cover text messages, and it declined to hear the Florida claim.  The 7th Circuit affirmed.  Although the case involved a medical-products marketer, the same rules govern restaurant texts, so the reasoning applies directly to SMS promotions, loyalty offers and other restaurant marketing messages.

What It Means for Loyalty and Promotional Texting

The TCPA’s do-not-call provision gives a private right of action (the right of an individual to sue) to a person who “has received more than one telephone call within any 12-month period by or on behalf of the same entity” in violation of the do-not-call regulations. The court held that text messages are not “telephone calls” under the do-not-call provision. It relied on 1991 dictionaries, which defined a telephone call as communication by sound. It also noted that the TCPA defines “telephone solicitation” as “a telephone call or message” while the do-not-call provision uses only “telephone call.” When Congress uses different words, courts presume different meanings, so texts fall under “messages.”

For restaurants, particularly in lawsuits filed in the 7^th Circuit, the practical takeaway is that brands may have more room to defend certain private do-not-call claims based on texts. Promotional and loyalty texts sent to numbers on the National Do Not Call Registry are, at least in that circuit, less likely to support a private lawsuit under this specific provision.

Why This Isn’t a Free Pass

The ruling is narrow, and several significant risks remain:

• Federal Communications Commission enforcement. The court said it was not bound by the FCC’s 2024 order extending National Do Not Call Registry protections to texts, but it left that order undisturbed. Regulators can still act, even though individuals in the 7^th Circuit cannot sue under the do-not-call provision over texts.
• A different part of the statute. The part of the statute that covers autodialed and prerecorded-voice claims gives individuals a broad right to sue. Other federal appeals courts covering Maine, Massachusetts, New Hampshire, Rhode Island, and Puerto Rico (1^st Circuit); New York, Connecticut and Vermont (2d Circuit); California, Oregon, Washington, Arizona, Nevada, Idaho, Montana, Alaska, Hawaii (9^th Circuit); and Florida, Georgia, and Alabama (11^th Circuit) – as wll as Congress — have treated texts as calls under that part of the statute.
• State law. The district court declined to hear the Florida law-related claim, so there was no decision on the arguments presented. Therefore, Florida’s law and other state “mini-TCPA” statutes remain in play.
• Voice calls. Calls are still covered under the TCPA’s do-not-call provision. The plaintiffs waived any argument based on the calls alone.
• Other jurisdictions. Other circuits have not squarely decided this question, so results may differ elsewhere. The issue could also reach the Supreme Court or prompt action by Congress.

The court itself observed that “repeated, unwanted text messages are undoubtedly a nuisance.” Guests who feel spammed are also unlikely to stay loyal, whatever the legal exposure.

What Operators Should Review

This is a good moment for marketing, operations and legal teams to review their texting programs together.

SMS consent practices

• Confirm that opt-in consent is documented for every channel: point of sale, online ordering, QR codes and in-store signage.
• Use clear, conspicuous disclosures that  say what guests will receive, how often and how to opt out are the first thing a plaintiff’s lawyer will look for.
• Scrub lists against the National Do Not Call Registry and internal do-not-contact lists.

Loyalty-program signups

• Make sure loyalty enrollment doesn’t quietly bundle marketing texts without clear consent.
•  A guest who texts STOP to the loyalty program and still gets an online-ordering promotion has not been opted out.Keep consent and opt-out records for a defined retention period so you can prove what a guest agreed to and when.

Promotional campaigns

• Respect quiet hours and timing limits under applicable state laws, which can vary by the guest’s location.
•  Does the campaign match what the guest agreed to receive?Separate transactional messages such as order-ready alerts from promotional ones where practical.

Third-party texting platforms

• Review vendor contracts for compliance obligations, audit rights and indemnity, which determine who pays if the vendor’s mistake leads to a lawsuit.
•  Who runs the registry scrub, and how often? Gaps here are a common source of texts to numbers that should not receive them.
• Know who controls sending decisions since messages sent “on behalf of” your brand can create liability for you.

Why Franchise and Multi-Location Brands Should Care

A single consent gap in a centralized SMS program can reach every guest at every location. At the same time, franchisee-run local campaigns can conflict with brand policy.  For example, a franchisee may launch its own happy-hour text blast using a list collected with weaker consent language, reaching guests who had already opted out of the brand’s messages.

Opt-outs should be synced across locations. A guest who texts STOP to one restaurant shouldn’t be messaged by another under the same brand. The TCPA reaches communications made “by or on behalf of” an entity. That means who is acting on behalf of the brand matters for liability. Franchise agreements and brand standards should clearly assign who owns the guest list, who approves campaigns, who selects vendors and who maintains records.

Conclusion

The 7th Circuit’s decision gives restaurant brands a useful defense against one category of private texting claims under the TCPA do-not-call requirement, mainly within Illinois, Indiana and Wisconsin. It does not eliminate FCC enforcement, state-law claims, autodialer and prerecorded-message claims  or risk in other jurisdictions.  Start by checking whether every opt-out reaches every system.

Samantha Duke, a partner at RumbergerKirk, represents corporate clients in high-stakes litigation and class actions. She handles matters involving Telephone Consumer Protection Act allegations and provides strategic legal, reputational and operational counsel to clients facing security incidents. She can be reached at sduke@rumberger.com.

LinkedIn: linkedin.com/in/samantha-duke-5b403b5a/

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This article first appeared in Modern Restaurant Magazine on October 19th, 2026 and is republished here with permission from the publication.