Antitrust Law Daily Wrap Up, PRIVACY—D. Conn.: Fax inviting doctor to dinner meeting was not unsolicited advertisement under TCPA, (Jan 14, 2015)

By Dan Selcke, J.D.

In granting their motions to dismiss, the federal district court in Bridgeport, Connecticut held that a trio of medical companies did not violate the Telephone Consumer Protection Act (TCPA) by sending a doctor a fax inviting him to an upcoming dinner meeting. Contrary to the arguments presented by Physicians Healthsource, Inc. (PHI), the company that employed the doctor, the fax did not constitute an unsolicited advertisement under the TCPA, since there was nothing in it indicating that the dinner was meant to promote any product or service offered by the medical companies (Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., January 12, 2015, Underhill, S).

Uninvited fax message. Medica, a healthcare communications agency, sent a fax to a doctor employed by PHI. The fax invited him to attend a dinner meeting where he and other medical professionals could hear a presentation on diagnosing sexual dysfunctions in women. Boehringer Ingelheim Pharmaceuticals (BIP) was listed as the sole sponsor of the dinner. The fax did not mention any product designed to treat these dysfunctions, nor did it mention treatment at all. Nevertheless, PHI sued Medica, BIP, and their parent company, claiming that the fax was an unsolicited attempt by the companies to market their goods or services in violation of the TCPA. The companies filed motions to dismiss.

“Unsolicited advertisement.” The court began by laying out some of the rules respecting what constituted an “unsolicited advertisement” under the TCPA. The statute made it unlawful “to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement.” 47 U.S.C. Section 227(b)(1)(C). “Unsolicited advertisement” was defined as “any material advertising the commercial availability or quality of any property, goods, or services which is transmitted to any person without that person’s express invitation or permission, in writing or otherwise.” 47 U.S.C. Section 277(a)(5). Generally, faxes informing people about an opportunity, such as a job opening or research study, were not prohibited by the TCPA. On the other hand, faxes promoting free seminars could be considered unsolicited advertisements, if they had a commercial pretext.

PHI argued that the fax in this case was an unsolicited advertisement. BIP was developing a drug that would treat the same kinds of sexual dysfunctions scheduled for discussion during the dinner meeting, and PHI asserted that it was plausible that the dinner was designed to promote this drug. To bolster its argument, PHI pointed out that a study of sexual dysfunctions mentioned in the fax was funded by BIP and that the speaker at the dinner had participated in research for the drug.

Fax as an advertisement. The court disagreed with PHI, reasoning that the fax was more informational than promotional. It was true that BIP was developing a drug to treat sexual dysfunctions, but the drug had not been approved by the FDA. FDA regulations prevented BIP from promoting a drug that had not been approved, and there was no indication that BIP was violating those regulations. Furthermore, there was no mention in the fax of the dinner being “promotional” in nature, and the topic was limited to diagnosing sexual dysfunctions rather than treating them. In short, there was nothing in the fax indicating that the dinner was a pretext for pitching a BIP product or service. Even assuming that BIP sponsored the dinner in order to inform potential future prescribers about the drug, any eventual economic benefit the company might obtain was purely hypothetical, and not sufficient to transform the fax into an advertisement.

Conclusion. Accordingly, the fax was not an unsolicited advertisement under the TCPA. With that issue decided, the court granted the companies’ motions to dismiss.

The case number is: 3:14-cv-405

Attorneys: Aytan Y. Bellin (Bellin & Associates LLC) for Physicians Healthsource, Inc. Bryan James Orticelli (Day Pitney LLP) for Boehringer Ingelheim Pharmaceuticals, Inc., and Boehringer Ingelheim Corp. Matthew H. Geelan (Donahue, Durham & Noonan, PC) for Medica, Inc.

Companies: Physicians Healthsource, Inc.; Boehringer Ingelheim Pharmaceuticals, Inc.; Boehringer Ingelheim Corp.; Medica, Inc.

Cases: Privacy ConnecticutNews