Second Circuit Affirms Exception for Flu Shot Reminder

TCPA Connect

Doubling down on the healthcare exception to the Telephone Consumer Protection Act (TCPA), the U.S. Court of Appeals for the Second Circuit ruled that Rite Aid was not liable for flu shot reminder calls.

A customer of the Highland Falls, NY, Rite Aid pharmacy, Robert Zani filled a prescription on Sept. 7, 2013. During the transaction, he provided his cellphone number along with other personal information. Zani filled prescriptions at the store at least twice more and received a flu shot at the store in October 2013.

Each time he filled a prescription at the location, he signed a Notice of Privacy Practices which indicated that Rite Aid “may contact [Zani] to provide refill reminders or information about treatment alternatives or other health related benefits and services that may be of interest.”

On Sept. 26, 2014, Zani received a phone call consisting of a prerecorded message placed by a third party on behalf of Rite Aid, which stated:

“Get your flu shot at Rite Aid today and shield yourself from this season’s strains of the flu. Rite Aid now offers patients 65 and over the Fluzone High Dose vaccine designed for older patients and covered by Medicare Part B. Because our immune systems may need more help as we get older, the Fluzone High Dose vaccine available at Rite Aid may deliver a stronger immune response. Come in today and shield yourself. No appointment necessary, and most insurance plans accepted. Vaccines available while supplies last. See your Rite Aid pharmacist for details. Goodbye.”

Zani filed a putative class action complaint against Rite Aid, accusing the pharmacy of violating the TCPA with the 2014 phone call. Rite Aid moved for summary judgment, arguing that the call conveyed a healthcare message permitted under regulations promulgated by the Federal Communications Commission (FCC). A judge in the Southern District of New York granted Rite Aid’s motion.

In February 2018, the Second Circuit affirmed the district court in a summary order, relying heavily on its recent decision in Latner v. Mount Sinai Health System, Inc.

As we previously reported, the panel in Latner held that a New York-based hospital did not violate the TCPA by hiring a third party to send text messages reminding customers to get a flu shot.

There, the Second Circuit discussed how the FCC devised a Telemarketing Rule in 2012 requiring “prior written consent for autodialed or prerecorded telemarketing calls.” However, the FCC exempts from written consent calls to wireless cellphone numbers if the call “delivers a ‘health care’ message made by, or on behalf of, a ‘covered entity’ or its ‘business associate,’ as those are defined in the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule.” The agency also limited the definition of marketing to exclude all communications made “[f]or treatment of an individual by a health care provider … or to direct or recommend alternative treatments” to the individual.

Although Mr. Zani attempted to argue that the flu shot reminder message fell outside the boundaries of a “health care message” because it had a marketing purpose, the Second Circuit disagreed.

“There may well be messages that, though purportedly delivering a health care message, are so laden with marketing material as to raise a factual issue as to whether they fall outside the health care exemption,” the panel wrote. “But the text of Rite Aid’s message here, which is not substantially different from the message in Latner, raises no such concerns and comes within the exemption as a matter of law.”

Even assuming Rite Aid did have a marketing purpose, “the health care exemption excepts these messages from the normal requirements imposed on telemarketing messages,” the panel added. All that was necessary under the statute to make the call was prior express consent.

Thus, “Rite Aid’s cellphone message was a ‘health care’ message exempt from the written consent requirement of the TCPA,” the panel wrote. “We further hold that Zani provided ‘prior express consent’ when he provided his cellphone number to the Rite Aid pharmacy and signed the privacy notice consenting to receiving messages.”

To read the summary order in Zani v. Rite Aid Headquarters Corp., click here.

Why it matters: The issue in Zani was “virtually identical” to that in Latner, the Second Circuit said, leaving little doubt about the outcome. The court’s ruling reinforces the power of the healthcare exemption to the TCPA and the two-step analysis to first determine whether the message qualifies for the exception (noting that some messages may be “so laden with marketing material as to raise a factual issue as to whether they fall outside the exemption”) and, if so, whether the recipient provided prior express consent.



pursuant to New York DR 2-101(f)

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