Following up on its decision in Latner v. Mount Sinai Health System, Inc., 2018 U.S. App. LEXIS 114 (2nd Cir. Jan. 3, 2018), the Second Circuit has again held that a flu shot reminder was a health care message under the TCPA. Zani v. Rite Aid Hdqtrs. Corp., 2018 U.S. App. LEXIS 4354 (2nd Cir. Feb. 21, 2018).
In Zani, the consumer filled a prescription at a Rite Aid pharmacy, provided his phone number and signed a Notice of Privacy Practices which provided that Rite Aid “may contact [Zani] to provide refill reminders or information about treatment alternatives or other health related benefits and services that may be of interest.” Zani at *2. Sometime later, Zani received a pre-recorded message from Rite-Aid’s vendor which stated:
Get your flu shot at Rite Aid today and shield yourself from this season's strains of the flu. Rite Aid now offers patients sixty five and over the Fluzone High Dose vaccine designed for older patients and covered by Medicare Part B. Because our immune systems may need more help as we get older, the Fluzone High Dose vaccine available at Rite Aid may deliver a stronger immune response. Come in today and shield yourself. No appointment necessary and most insurance plans accepted. Vaccines available while supplies last. See your Rite Aid pharmacist for details. Goodbye.
Zani at *3. Zani filed suit contending the message violated the TCPA. Rite Aid moved for summary judgment, contending the message was a health care message provided with the consumer’s prior express consent. The district court granted Rite Aid’s motion for summary judgment.
On appeal, both parties agreed that Zani had provided his prior express consent when he provided his cell number previously. Zani contended, however, because the message did not convey a health care message, express written consent was required and he had not provided it. The court disagreed, noting that its recent decision in Latner involved virtually identical issues. The court reiterated its decision in Latner holding that the message was a “health care” message exempt from the written consent requirements of the TCPA.