Rite Aid Wins Summary Judgment in TCPA Class Action for Flu Shot Reminder Calls

By Joseph C. Wylie II, Molly K. McGinley, Lexi D. Bond

A New York U.S. District Court recently granted summary judgment in favor of defendant Rite Aid Headquarters Corporation in a putative Telephone Consumer Protection Act (“TCPA”) class action, holding that calls reminding customers about the flu vaccine were “health related” and therefore Rite Aid was not required to obtain prior express written consent before making the calls. Though the opinion was filed under seal on March 30, 2017, it was made public last week.

In Zani v. Rite Aid Headquarters Corp., 14-cv-9701, plaintiff Robert Zani alleged that Rite Aid violated the TCPA, 47 U.S.C. § 227, by sending prerecorded flu shot reminder notices to consumers’ cell phones without prior express written consent. Zani had previously received a flu shot at a Rite Aid, and at the time he received this shot he signed a vaccine form and provided his cell phone number. Zani had also signed several written notices agreeing to be contacted by Rite Aid “about refill reminders . . . or health related benefits and services.” Based on this undisputed evidence, Rite Aid argued, inter alia, that the reminder calls fell under the “Health Care Rule,” 47 CFR 64.1200(a)(2), adopted under the TCPA in 2013. Under that rule, calls from health care providers that deliver a “health care message” are exempt from written consent requirements for prerecorded and autodialed calls made to cell phones. It further argued that Zani had consented to receiving the calls by providing his cell phone number to Rite Aid in connection with his previous flu shot.

The court agreed with Rite Aid and found that the reminder calls “delivered a health care message.” Analyzing the statutory and regulatory text and guidance, including the guidance on “health care message” calls contained in the FCC’s 2015 Order, the court found three factors material to whether a call conveys a message within the scope of the Health Care Rule: (1) whether the call concerns a product or service that is health related, which would include administration of medication; (2) whether the call is made to a patient with whom the health care provider has an established health care relationship; and (3) whether the call concerns the individual health care needs of the patient recipient. The court further found that all three factors were present in the undisputed facts of the case. These factors were sufficient, though not necessary, to a finding that the call delivered a health care message and was subject to the Health Care Rule.

Because the court found that the requirements for the Health Care Rule were met, Rite Aid was exempt from the TCPA’s written consent requirements. Since it was exempt, Zani’s argument that the call constituted “marketing” was irrelevant, because the Health Care Rule applies to any message, whether marketing or not, that otherwise is “health care related” as defined in the rule. Since it was undisputed that Rite Aid had Zani’s prior consent of before making the call, the court granted summary judgment and denied Zani’s motion for class certification as moot.

Given that there are few judicial opinions interpreting the text and scope of the Health Care Rule, this decision gives some much-needed clarity on the application of the exemption.