Pharmacy chain Rite Aid scored a victory recently when the Second Circuit affirmed a district court grant of summary judgment in a putative class action under the Telephone Consumer Protection Act (TCPA). In Zani v. Rite Aid Headquarters Corp., 17-1230-cv (February 21, 2018), the plaintiff brought suit after receiving a prerecorded phone call to his cell phone encouraging him to get his flu shot at a local Rite Aid pharmacy. The plaintiff had a flu shot at Rite Aid the year prior, and in the course of that visit provided his cell phone number on a patient intake form.

Notwithstanding that the underlying purpose of the call was to advertise the availability of flu shots, the Southern District of New York and the Second Circuit held that the prerecorded calls delivered a “health care message” and were therefore subject to less stringent consent requirements than those generally imposed on autodialed or prerecorded telemarketing calls and texts. The TCPA regulations promulgated by the FCC exclude from the prior express written consent requirement any calls made to cellular phones if the call “delivers a ‘health care’ message made by, or on behalf of, a ‘covered entity’ or its ‘business associate,’ as those terms are defined in the HIPAA Privacy Rule, 45 CFR 160.103.” See 46 C.F.R. § 64.1200(a)(2). The courts were persuaded by three factors in concluding that Rite Aid’s prerecorded calls were health care messages: (1) the message concerned a product or service that is health related; (2) the message was to a patient with whom the provider had an established health care relationship; and (3) the message concerned the individual health care needs of the patient.

TIP: Though recent cases have indicated the potential start of a trend toward finding that flu shot or prescription reminder calls and text messages may not be subject to TCPA’s heightened prior express written consent standard, companies in the health care space should still carefully evaluate their use of autodialed or prerecorded calls and texts to introduce information that may be construed as advertising. The Second Circuit cautioned in Zani that health care messages are not automatically exempted from the heightened consent requirements, and that there may be a tipping point at which the advertising content in a health care message is so prominent that prior express written consent may still be required.