An age-old question under the Telephone Consumer Protection Act (TCPA) – was a fax an unsolicited advertisement? – was presented to Judge Matthew T. Schelp in BPP v. CaremarkPCS Health, L.L.C. d/b/a CVS Caremark and WellTok, Inc., 2021 U.S. Dist. LEXIS 216536, United States District Court for the Eastern District of Missouri, Eastern Division, November 9, 2021.

Caremark is a “pharmacy benefit manager” which, among other things, “provides prescribing doctors, such as Plaintiff, with information regarding new limitations related to insurance coverage of… medications for their patients.” In this case, Caremark sent a fax to BPP (a fictitious name for a Dr. William Cohen) informing him of “new supply limits on coverage for opioid prescriptions for certain pediatric and adolescent patients covered by plans sponsored by Caremark clients.”

BPP cried foul and sued, contending that the fax was an unsolicited advertisement in violation of the TCPA. Caremark moved for summary judgment, countering that the fax was not an “advertisement,” but an “informational” message that did not trigger the statute. Judge Schelp agreed with Caremark.

Initially, he noted that the fax did not advertise “either the commercial availability or the quality of Caremark’s service,” but only informed Dr. Cohen of “Caremark’s new supply limit and provides up-to-date information to keep doctors…informed about changes to the terms of their patients’ prescription coverage.” Indeed, the very wording of the fax message – which referenced Caremark’s clients (entities that sponsor group health plans, not doctors or patients) – confirmed that to be the case.

Given those facts, even conceding that the “fax calls Caremark’s services” to Dr. Cohen’s attention, “one cannot inform without somewhat promoting, but here, it is clear that the… ‘primary purpose’ is to inform.”

Dr. Cohen sought to manufacture a “commercial” rationale for the fax by urging the Court to investigate whether in sending it Caremark would gain an “indirect or ancillary commercial benefit.” However, Judge Schelp declined to proceed down that rabbit hole, noting that any link to such benefit is “too tenuous for the Court to speculate and the record is devoid of any evidence to the contrary.” Moreover, even if he agreed to speculate, the “‘fact that Caremark might gain an ‘ancillary, remote and hypothetical benefit later on does not convert a non-commercial, informational communication into a commercial solicitation.’”

Finally, the Court observed that Caremark “is not in the business of selling any products or services to health care providers…and the record demonstrates that a ‘supply limit’ regarding prescription benefits coverage is not a product, good or service that any doctor or patient may purchase from Caremark.” So the fax has “no commercial motive, cannot solicit business for a commercially available service” and by being sent Caremark “cannot hope to attract clients or customers…, nor requests that the Plaintiff or its patients to take any affirmative action whatsoever.”

Bottom line: Caremark sent the fax in a “purely informational, non-commercial sense” to inform and not to advertise. No reasonable jury could conclude that the fax “promoted the commercial availability or quality of Caremark’s services.” Summary judgment granted for Caremark.