A federal court has ruled that pharmacies are within their rights under the Telephone Consumer Protection Act (TCPA) to place pre-recorded calls to some customers reminding them to get flu shots.
In 2014, plaintiff Robert Zani filed suit against Rite Aid after receiving a pre-recorded call about flu shot availability. Zani had received a flu shot at the drug store the previous year and had given the pharmacy his phone number at that time.
Womble Carlyle attorney Doug Bonner discussed the case, and its implications, with Legal NewsLine. Bonner said he wasn't surprised by the court's decision, noting that the FCC recognizes a "health care rule" exemption under the TCPA.
"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," Bonner said.
However, there are limits to this exemption, Bonner noted to Legal NewsLine. For example, a provider may only call once per day, up to three times per week, and an opt-out mechanism must be provided to patients.
In addition, FCC rules provide an "emergency purposes exemption from FCPA liability. Bonner said that calls affecting the health and safety of the consumer, including calls about flu shots, may be covered by that exemption.
Bonner also said he expects fewer lawsuits of this variety 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."
Doug Bonner has more than 25 years of experience representing wireline and wireless telecommunications providers, cable TV, VoIP and broadcast companies in FCC, FTC and state regulatory proceedings, and in telecommunications-related litigation. He also advises clients on related privacy and data security issues involving federal regulation.
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