On November 11, 2016, a putative class action complaint was filed against two related pharmaceutical companies alleging violations of the Telephone Consumer Protection Act (“TCPA”). Specifically, the complaint alleges that the pharmaceutical companies sent an unsolicited fax advertisement in violation of the TCPA. The plaintiff has already moved for preliminary class certification. The defendants have yet to appear in the fax marketing class action.
How did the Fax Marketing Campaign Violate the TCPA?
Pharmaceutical Fax Marketing Campaign Allegedly Violates the TCPA
According to the complaint, the plaintiff, a medical clinic located in Pennsylvania, received an unsolicited fax advertisement from the defendants. According to the plaintiff, the subject fax advertisement was missing the federally required “opt-out” notice language. Therefore, the plaintiff alleges, the defendant cannot use the affirmative defense of consent to send the fax advertisements in this case because the requisite opt-out notice was missing. As you may know, the Federal Communications Commission has previously ruled that even when a defendant obtains prior express written consent to send commercial faxes, omitting the requisite opt-out language constitutes a violation of the TCPA.
TCPA rules require that specific opt-out language is included in all fax advertisements. Unfortunately, many businesses are unaware of this requirement, or worse, dismiss the requirement as inconsequential. However, as we have previously blogged, significant TCPA damages have been obtained in cases simply because the required opt-out notification was missing from a fax advertisement. This TCPA-specific nuance, along with many others, underscores the need for businesses to consult with competent counsel prior to engaging in any fax marketing campaign.