On January 19, 2023 the Third Circuit dismissed a TCPA class action lawsuit (Mauthe v. Millennium Health LLC) against a company that had sent a one-page promotional fax to consumers without their prior consent about a free educational seminar related to drug testing and medication monitoring.

The free seminar would “highlight national trends in opioid misuse and abuse…and discuss the role of medication monitoring as a valuable tool that provides objective, actionable information during the care of injured workers.” 

The fax did not promote specific goods or services. Nor did it include pricing information, testimonials, discount offers, coupons, or any product images. It also did not contain contact information for purchasing a product or service sold by the company. Nevertheless, Millennium Heath was sued under the TCPA’s fax provisions based on a claim that the fax was an unsolicited advertisement. 

Rejecting the claim, the Third Circuit held that “no reasonable recipient…could view [the fax] as promoting the purchase or sale of goods, services or property,” and thus directed dismissal of the suit.

If the contents of the fax had been only slightly different, such as mentioning a product sold by the company, the decision could have easily gone the other way. For marketers and advertisers, the case highlights the fine line companies face when sending consumers messages by telephone, text, or fax without obtaining their prior consent.