Antitrust Law Daily Wrap Up, PRIVACY—DNJ: Fax Informing Recipient of Drug’s Insurance Tier Change Was Informational, Not Promotional, and Not Barred by the TCPA, (Feb 8, 2013)

By Tobias J. Gillett, J.D., LLM.

A pharmaceutical company did not violate the Telephone Consumer Protection Act (TCPA) by sending two facsimiles stating that the insurance tier rating of one of its drugs had changed because the facsimiles constituted informational messages rather than prohibited advertising, and hence were not barred by the TCPA, the federal district court in Camden, New Jersey has ruled (Physicians Healthsource, Inc. v. Janssen Pharmaceuticals, Inc., February 6, 2013, Wolfson, F.).

Janssen Pharmaceuticals, Inc. sent Physicians Healthsource, Inc. (“Physicians”) two unsolicited facsimiles, informing Physicians that Janssen’s drug Levaquin had been changed from a Tier 3 to a Tier 2 drug for insurance purposes, allowing the drug to be obtained with a lower copayment.

Physicians brought suit against Janssen, claiming that the unsolicited facsimiles violated the TCPA. Janssen moved to dismiss.

The court explained that the TCPA prohibits sending unsolicited facsimile advertising, but that “Congress intended that non-commercial faxes fall outside the TCPA’s prohibition.” A facsimile constituted prohibited advertising if it “promote[d] the commercial availability or quality of a good or service.” However, those facsimiles that did not “promote the commercial availability or quality of a good or service” were “informational messages exempted from the TCPA, even if the sender will ultimately obtain an ancillary commercial benefit” from sending them.

Advertising. Under this standard, the court concluded that the facsimile at issue did not constitute advertising. The facsimiles merely notified Physicians of the reclassification of Levaquin, and did not promote its “commercial availability or quality, in the court’s view.” The facsimile’s claim that Levaquin was now “Available on UnitedHealthcare PDL Tier 2” did not advertise Levaquin’s commercial availability; it referred only to Levaquin’s reclassification, “not where or how it is available for purchase.” The court declined to inquire into whether Janssen received an “ancillary commercial benefit” from sending the facsimiles.

The presence of Janssen’s name and marketing logos on the facsimiles did not alter the court’s conclusion. The use of Janssen’s name complied with the TCPA’s requirement that an informational facsimile must identify the sender, and the name only appeared “at the margins of the fax, unconnected to the word Levaquin.”

The marketing logos also did not convert the facsimiles into advertising. The court explained that, while “an incidental advertisement of the sender’s goods or services” did not render a facsimile an advertisement, a significant amount of advertising material could “serve to undermine the informational purpose of the message.”

Here, the advertising material was only “incidental.” The facsimiles “were clearly only useful to physicians who were prescribing Levaquin to patients on UnitedHealthcare PDL,” and nothing indicated that the recipients of the facsimile were not in that category. Moreover, the marketing logos were “only at the bottom margin in small print and away from the name Levaquin,” with the informational portion of the facsimile occupying most of the space.

The inclusion of Janssen’s contact information also did not change the facsimiles into advertising. The information was “included for the purpose of obtaining additional information on Levaquin, and was in small print away from the facsimile’s main content.

Finally, the court found nothing to suggest that Janssen had sent the facsimile as a pretext to promote Levaquin. The facsimile merely notified Physicians of the reclassification of Levaquil, and did not advertise its “commercial availability or quality.” The court distinguished the present case from two federal district court opinions that had found otherwise informational messages to be pretexts for advertising on the grounds that the facsimiles in those cases had offered free seminars to the recipients, which the courts had considered to be promotional.

Therefore, the court concluded that the facsimile were informational messages rather than advertisements, and dismissed Physicians’ TCPA case.

The case is Civil Action No. 12-2132 (FLW).

Attorneys: Matthew Nicholas Fiorovanti (Giordano Halleran & Ciela PC) for Physicians Healthsource, Inc. Marsha Jessica Indych (Drinker Biddle & Reath LLP) for Janssen Pharmaceuticals, Inc.

Companies: Physicians Healthsource, Inc.; Janssen Pharmaceuticals, Inc.

Cases: Privacy NewJerseyNews