It is no surprise that district courts have held that prescription reminder calls and texts are exempt from the prior express written consent requirement under the Telephone Consumer Protection Act (TCPA). These calls or texts are permitted if placed with the recipient’s prior express consent based on the TCPA’s exemption for “health care” messages as defined in the Health Insurance Portability and Accountability Act (HIPAA).
What is surprising, however, is that a district court has ruled that prescription reminder calls and texts are completely exempt from liability as they fall under the TCPA’s “emergency purposes” exemption. The TCPA defines “emergency purposes” as “calls made necessary in any situation affecting the health and safety of consumers.”
In Lindenbaum v. CVS Health Corp., No. 1:17-cv-01863, 2018 U.S. Dist. LEXIS 10052 (N.D. Ohio Jan. 22, 2018), plaintiff alleged that CVS violated the TCPA when it erroneously made prerecorded prescription reminder calls to her cell phone when she had no relation with the CVS customer who previously owned the number.
The court rejected plaintiff’s argument that the calls did not concern an emergency. It noted the calls were made for the health and safety of consumers and “in many instances a patient’s ability to timely receive a prescribed medicine is critical in preventing a major health emergency.” It also relied on the Federal Communication Commission’s broad interpretation of the term “emergency purposes,” which is not limited to large scale emergencies like power outages, severe weather, terrorist attacks, AMBER alerts, or unexcused school absence alerts like the plaintiff suggested.
The court rejected the plaintiff’s reliance on St. Clair v. CVS Pharmacy, Inc., 222 F. Supp. 3d 779 (N.D. Cal. 2016), which held that the prescription reminder calls did not fall under the “emergency purposes” exemption because that plaintiff had received continued reminder calls after specifically asking CVS to stop. The St. Clair court held that there could not be an “emergency” when the customer had already told CVS he did not want or need the calls. Unlike in St. Clair, this plaintiff failed to tell CVS that it was calling the wrong customer number before she sued.