Second Circuit Confirms Prior Express Consent For “Health Care” Messages Need Not Be In Writing Under TCPA

On February 21, 2018, the Second Circuit Court of Appeals affirmed a lower court’s grant of summary judgment in a TCPA defendant’s favor, holding that the TCPA plaintiff provided prior express consent for a “health care” message, precluding liability. In its decision, the Second Circuit confirmed that under the TCPA, a defendant need not obtain written prior express consent to send a health care message.

In Zani v. Ride Aid Headquarters Corp., the plaintiff brought suit under the TCPA on behalf of himself and a putative class against Rite Aid, alleging that it unlawfully called him soliciting a flu shot at Rite Aid pharmacies. The plaintiff had previously filled a prescription at a Rite Aid-branded pharmacy and provided his cell phone number, later filling his prescriptions at least twice in the next year. Each time the plaintiff filled a prescription, he signed a privacy practices form which stated that Rite Aid could contact him regarding “other health related benefits and services that may be of interest.” Subsequently, plaintiff received a flu shot from the same Rite Aid pharmacy.

Approximately one year later, the plaintiff received a call with a prerecorded message “informing him of the availability of flu shots for the upcoming flu season at Rite Aid pharmacies.” It was this call that prompted the plaintiff’s lawsuit, where he alleged that while he may have provided express consent verbally, Rite Aid violated the TCPA because it did not obtain his prior express written consent.

The Second Circuit disagreed. The Second Circuit noted that while current FCC regulations require prior express written consent for advertising or telemarketing message calls, the FCC created an exemption from the written consent requirement for a “‘health care’ message made by, or on behalf of, a ‘covered entity’ or its ‘business associate.’” Thus, automated health care calls require only prior express consent, not prior express written consent, and are not subject to other heightened disclosure requirements that come with typical telemarketing messages.

The Second Circuit further disagreed with the plaintiff that Rite Aid’s prerecorded message was not a health care message. The Court acknowledged that 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. But the text of Rite Aid’s message here . . . raises no such concerns and comes within the exemption as a matter of law.”

The case is Zani v. Ride Aid Headquarters Corp., No. 17-1230-CV, 2018 WL 992309 (2d Cir. Feb. 21, 2018).

Author: Anthony Sallah

Anthony is an associate in Benesch Law's Litigation Practice Group. He counsels and assists clients in a wide array of commercial litigation matters. His practice includes litigation of business disputes, consumer-related class action litigation, false advertising and counterfeit Lanham Act cases, and director and officer liability.