On October 11, Magistrate Judge Jacqueline Scott Corley, ruled in favor of Defendant Safeway for autodialed and pre-recorded calls to Plaintiff. This case arose when Plaintiff, a Safeway customer, received three pre-recorded telephone messages promoting Safeway’s flu shots. In September 2014, Safeway contracted with a third-party communications company for the express purpose of contacting Safeway’s existing pharmacy patients via pre-recorded telephone calls to remind them to get a flu shot for the upcoming flu season.
The criteria to be contacted by Safeway required (1) a patient to be an existing Safeway patient who previously provided a telephone number; (2) Safeway’s records to indicate that the patient received a flu shot at one of its pharmacies during the immediately preceding year’s flu season; and (3) Safeway’s records to indicate that the patient had not yet received a flu shot for the current season. Jackson v. Safeway, Inc., Case No. 15-cv-04419, 2016 WL 5907917, at *2 (N.D. Cal. Oct. 11, 2016).
Prior to the calls, and according to the record evidence, Plaintiff first received her flu shot from a Safeway pharmacy in January 2014. In connection with this flu shot, Plaintiff completed a “Consent and Release” form, wherein she provided her wireless telephone number. Id. at *1. Thereafter, in November 2014 and January 2015, Plaintiff received three pre-recorded calls to her wireless number. Id. Based on these calls, Plaintiff brought suit alleging violations under the TCPA.
On an early summary judgment motion, Safeway argued that the calls were not in violation of the TCPA based on (1) the TCPA’s telemarketing health exception (47 C.F.R. § 64.1200(a)(2), “Health Exception”); and/or (2) the exigent healthcare treatment exemption laid out in the July 2015 FCC Order, ¶ 147 (“Treatment Exemption”). Importantly, both the TCPA’s Health Exception and Treatment Exemption invoke strict requirements under the Health Insurance Portability & Accountability Act (HIPAA).
Based on the evidence presented, the Court found that Safeway provided undisputed evidence that the flu shot calls to Plaintiff qualified under both the TCPA Health Exception and Treatment Exemption. Under the Treatment Exemption, the Court found that Safeway established that the calls (1) were not charged to the called party; (2) identified Safeway’s name and contact information; (3) were made only to the telephone number provided by Plaintiff in connection with her prior flu shot; (4) were made under HIPAA’s “prescription notification” and “wellness checkup”, and did not include an advertising message; (5) lasted less than a minute; (6) were made one per day; and (7) provided an opt out opportunity. Id. at *5. The Court found that “every reasonable trier of fact would find that the flu shot reminder calls fall under the Exigent Healthcare Treatment Exemption and Safeway thus did not require Plaintiff’s prior express consent under the TCPA.” Id. at *7.
Likewise, the Court sided with Safeway under the Health Exception when it found that “[u]nder the present record, every reasonable trier of fact would conclude that the flu shot calls deliver a ‘health care’ message and were within the scope of Plaintiff’s prior express consent.” Id. at *7. Because Safeway operates pharmacies within their stores, the Court agreed that any reasonable trier of fact would conclude that “Safeway’s flu shot reminder calls are ‘health care’ messages under the relevant FCC and HIPAA guidelines” because they “concern ‘care, services, or supplies related to the health of an individual’ and because providing flu shots constitutes ‘dispensing of a drug ... in accordance with a prescription.’” Id. at *10.
Accordingly, Safeway’s summary judgment motion was granted, and the case was closed. This case is a great example of how proper privacy compliance across multiple federal regulations can provide a business safeguards against lawsuits that otherwise have no foundation.