NEW YORK (Legal Newsline) – In a recent court decision, Rite Aid won the right to place pre-recorded calls to customers and remind them to get a flu shot.

The U.S. District Court for the Southern District of New York on March 30 decided against Robert Zani in his lawsuit against Rite Aid Headquarters Corp.

In December 2014, Zani filed suit alleging a violation of the Telephone Consumer Protection Act (TCPA). Rite Aid had allegedly placed a pre-recorded call to Zani telling him about flu shots being available. Zani had received a flu shot from Rite Aid in 2013 and supplied the pharmacy with his phone number.

As the court’s opinion explains, “The TCPA makes it unlawful for any 'person within the United States; to, inter alia, 'make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or...artificial or prerecorded voice...to any telephone number assigned to a...cellular telephone service.'"

The Federal Communications Commission (FCC) regulates the TCPA.

Douglas G. Bonner - a telecom and privacy partner and co-chair of the Federal Communication Bar Association's Privacy & Data Security Committee and attorney with Womble Carlyle Sandridge & Rice - told Legal Newsline that he wasn’t surprised by the ruling.

“The FCC had previously adopted a 'health care rule' in 2012 exempting from its prior written express consent requirement for autodialed or prerecorded voice telemarketing calls, and the plaintiff in this case received a single flu shot reminder call in 2014 after providing Rite Aid with his cellphone number when he received a flu shot from Rite Aid the previous year. Therefore, the court concluded that the call was a 'health care' message by a 'covered entity' under the HIPAA Privacy Rule,” he said.

“The court determined that the call was a 'health care' message because it: (1) concerned the availability of a prescription medication; (2) was made within an established health care treatment relationship; and (3) concerned the individual health care needs of the plaintiff.” 

The TCPA exempts calls made for an emergency purpose.

Health care messages like this flu vaccine reminder call and pharmacy prescription refill reminders can also rely on the 'emergency purpose' exception to liability under the TCPA for an autodialed or artificial/prerecorded voice call to a cellular telephone number," Bonner said. "An emergency purpose means calls 'made necessary in any situation affecting the health and safety of consumers.'"

At least one federal court has held in 2016 that the emergency purpose exception exculpates a defendant pharmacy from TCPA claims regarding prescription refill reminders.

“The FCC in a July 2015 declaratory ruling established an additional express exemption for calls for which there is an ‘exigency and that have a health care treatment purpose.’ The FCC has noted in briefing that many health care calls may fall within both the emergency purposes exception and health care exemption, and for those calls that do not fall within the healthcare exemption, parties can rely on the broad emergency purposes exception ‘as appropriate.’ Under the health care exemption, there are limitations in the number (1 per day, 3 per week) of such calls allowed from a single provider, length of call or text message, and an opt-out mechanism must be offered,” said Bonner. 

There have been a lot of lawsuits over these types of health care reminder calls. 

“A major national pharmacy client of my former firm was sued in a TCPA class action over prescription refill reminders several years ago," Bonner said. "The case was settled before a ruling on the emergency purpose exception defense, and there have been other such suits. 

"But I expect fewer such suits over health care reminders to occur in the future, even if they involve telemarketing, because of the variety of defenses available for qualifying health care messages such as this, and the difficulty overcoming these defenses as the law has become more settled.”   

Bonner said that in the past, plaintiffs sometimes win these types of suits. 

“The defenses are more challenging in the case of health care messages which can benefit from the emergency purposes exception and the healthcare exemption," he said. "And as the law is becoming more settled with court precedent finding no liability, the number of cases brought against pharmacies for prescription or flu shot reminders should diminish.”

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