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TCPA Decision: Medicare ‘Update’ Fax Not Advertising TCPA – Technology

United States: TCPA Decision: Medicare ‘Update’ Fax Not TCPA Ad

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A federal court ruled that a fax sent by a pharmacy benefit manager (“PBM”) to health care providers notifying recipients of changes to policyholder coverage for prescriptions – the fax mentioned PBM activities but was not promoting any product or service – does not constitute “advertising” under the Telephone Consumer Protection Act, 47 USC § 227 (“TCPA”). The court applied the “commercial nature” test for a TCPA advertisement.

CaremarkPCS Health, LLC, a PBM that manages prescription drug benefits for health insurers (“Caremark”), sent an unsolicited fax to more than 55,000 healthcare providers advising them of the new supply limits on opioid prescription coverage for certain patients covered by plans sponsored by Caremark customers.

A healthcare provider sued Caremark claiming that the unsolicited fax was unsolicited advertising under the TCPA because: (1) the fax referred to services provided by Caremark and (2) Caremark may benefit economical sending of the fax.

The court rejected these arguments. First, the court found the fax statement regarding Caremark’s services to be informative. Second, the court said that the mere fact that Caremark may obtain a distant economic benefit in the future does not convert a non-commercial disclosure of information into a commercial solicitation. The court considered the “main purpose” of the fax to be informative and not promotional. The court also considered the nature of Caremark’s business to determine the purpose of the fax. BPP v CaremarkPCS Health, LLC, n ° 4: 20-cv-126, 2021 WL 5195785 (ED Mo. November 9, 2021).

Course: The intent of the message in the fax – informational and non-promotional – must be clear in order to avoid the communication being an “advertisement” under the TCPA.

Disclaimer: This alert has been prepared and posted for informational purposes only and is not offered, nor should it be construed as legal advice. For more information, please consult the full warning.