In Bailey v. CVS Pharmacy, Inc., 2018 WL 3866701 (D.N.J. Aug. 14, 2018), Plaintiff Jaclyn Bailey filed a putative class action alleging that CVS violated the TCPA by sending text messages to its customers notifying them that their prescription was ready to be picked up, which also included three little words: “Flu shots available.”

Unsurprisingly, the Court granted CVS’s motion to dismiss under Rule 12(b)(6) finding that the language “Flu shots available” fell under the Healthcare Exemption of the TCPA because it was 1) health related, 2) limited only to CVS customers who enrolled in the CVS Ready Text Program and 3) the message was prepared in the course of notifying the patient about his/her order status.

However, the Court did not stop there. It goes on to find that these three little words were also within the scope of consent plaintiff provided to be alerted about her prescription pickup status.

As a standalone text message, the three little words “Flu shots available” would have constituted telemarketing under the TCPA as it would have been a “message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.” 47 CFR §64.1200(f)(12). That, in and of itself, would have required written express consent. See 47 CFR §64.1200(f)(8).

But the Court finds that the words “Flu shot available” was within the scope of consent provided by plaintiff when she signed up to receive alerts that her prescription was available for pick up. The FCC has clarify that the term “scope of consent” means a call or message that is closely related to the purpose for which the telephone number was originally provided. In the Matter of Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, FCC 15–72, 30 F.C.C.R. 7961, ¶141 n474 (July 10, 2015).

Here, the terms for opting into the prescription status updates were as follows:

Enrollment in this service requires providing a mobile phone number and agreeing to these terms and conditions. Before the service will start, you will need to verify the mobile phone number by responding to a text message to your mobile phone that affirms your choice to opt in to this service. Note that in affirming this message, you acknowledge that notices about your prescriptions, which may include some limited protected health information, will be sent to the number you provide and whoever had access to that mobile phone or carrier account will be able to see this information. Once you affirm your choice to opt in to this service, Message Frequency will depend on account settings. You will receive a message each time one of your prescriptions is ready for pick up.  Message and data rates apply. Customers will be allowed to opt out of this program at any time.

The Court found that because the message notified plaintiff about the availability of its prescription services, it was closely related to the scope of Plaintiff’s express consent to receive prescription status updates.

This certainly seems to all make sense to me.  Someone who is picking up their medical prescription would likely want to receive information related other prescription services such as flu shots – particularly with the fall flu season coming up.  Now that’s nothing to sneeze at.

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