TCPA liability extends to pharma? Rite Aid HDQTRS. Corp. awaits Court decision on phone calls made to remind consumers of flu immunization.

Rite Aid HDQTRS Corp. (Rite Aid) made reminder calls to their customers using automated calling equipment. The calls were made with the specific purpose of reminding them to take their flu shots for the impending flu season.

These calls resulted in a lawsuit detailing the action as a violation of the The Telephone Consumer Protection Act (TCPA) which specifies auto dialer rules, including prohibiting making calls to consumers who have not given a clear prior consent.

The Case

Rite Aid has recently asked for dismissal of a putative class action lawsuit that is pending in the Southern District Court of New York. The lawsuit alleges violations of TCPA in the following manner:

  • Rite Aid made automated calls to customers on their cellphones reminding them to get their flu shots for the upcoming flu season.
  • No consent was given for these calls.

However, Rite Aid, in its defense, says that the Federal Communications Commission (FCC) has already made it clear that calls of the kind they made to customers reminding them of flu shots do not fall under the TCPA rules. Rite Aid says that the FCC does not categorize immunization reminders, in this case calls made for flu shots, as unsolicited advertisements or marketing material.

Further, the plaintiff of the lawsuit had provided his phone number to Rite Aid in the year he first got a flu shot. The providing of the number indicates, according to Rite Aid:

  • Permission to be contacted for information regarding treatment alternatives or other health-related benefits that could be of interest.

The Defense in Detail:

In its defense, Rite Aid has said that:

  • The FCC Healthcare Rule says that no prior express consent is needed if the recipient has previously provided their cell number.
  • Immunization reminders are exempt from the prior consent rule; Rite Aid has argued that the Healthcare Rule applies to such messages.
  • Prerecorded calls that convey a specific healthcare-related message, such as those involved in the current case, are subject to the Health Insurance Portability and Accountability Act (HIPAA). However, these calls are also exempt from the Telemarketing Sales Rule.

As a result, Rite Aid is making the following claims for the motion that awaits a decision by the Court:

  • While FCC specifies that consent is not needed for making healthcare-related calls, Rite Aid does indeed have sufficient consent because the plaintiff provided their phone number to a healthcare provider, which is seen as prior express consent for healthcare calls that are subject to HIPAA (in case of a HIPAA-covered entity).
  • Each time the plaintiff filled prescriptions with Rite Aid, it provided Rite Aid with express written consent to make the calls.

Our Perspective: Exercising Caution is Your Best Bet

From the perspective of consumers and their rights, the Rite Aid case exhibits the need for preventive measures, especially when providing any kind of personal details. If the act of providing your telephone number to a healthcare provider is deemed as consent to receiving information through phone calls, consumers need to be aware of this fact. In most cases however, a pharmacy setting is not conducive to reading fine print, etc. The general opinion is that health and wellness are not areas that could be compromised.

Further, though deemed as not falling under the ambit of TCPA violations, unsolicited phone calls nevertheless are a drain on an individual’s time, apart from being annoying and intrusive. From this aspect too, depending on individual circumstances, TCPA violations need to be looked at carefully.

Exercising caution is your best bet. This can also be helped by understanding your legal rights better. In case of doubts, reach out to those who possess an understanding of rules and regulations governing such entities. A clearer communication can help the consumer understand what is expected and what could be the consequences of a particular action, including that of providing personal details such a telephone number.

About Us

Legal Rights Advocates, PLLC is a law firm that specializes in helping clients who are being harassed by debt collectors. Our team of attorneys, over the years, has helped countless clients get protections from debt collection practices that are deemed as unlawful and illegal under the FDCPA and TCPA laws.

If you are a consumer interested in learning more about how to safeguard yourself better with TCPA, call us at (855) 254-7841 for immediate assistance to put an end to debt collection harassment.

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