In April 2018, a Connecticut federal court—deciding a case on remand from the U.S. Court of Appeals, Second Circuit—dismissed a Telephone Consumer Protection Act (TCPA) action challenging a faxed dinner invitation in Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, et al.
In 2010, Boehringer Ingelheim Pharmaceuticals (Boehringer) sent a fax to Physicians Healthsource, inviting one of the practice’s doctors to a free dinner meeting and discussion. The fax stated:
“Boehringer Ingelheim Pharmaceuticals, Inc. cordially invites you to join us for a dinner meeting entitled, It’s Time to Talk: Recognizing Female Sexual Dysfunction and Diagnosing Hypoactive Sexual Desire Disorder. Based on recent data from a large US study (PRESIDE), 43% of US women aged >18 years have experienced a sexual problem in their lives and 9.5% of the same group of women have experienced decreased sexual desire with distress. This program has been developed to discuss Female Sexual Dysfunction (FSD), including Hypoactive Sexual Desire Disorder (HSDD) including pathophysiology models, epidemiology and diagnosis. We hope you will join us for this informative and stimulating program.”
Around the same time as the meeting, Boehringer was seeking approval from the Food and Drug Administration (FDA) for a new drug, flibanserin, intended for treatment of FSD/HSDD.
Physicians filed suit under the TCPA, alleging the fax was an unsolicited advertisement. The defendant moved to dismiss the case, taking the position that the fax was not an “advertisement” as defined by the statute. U.S. District Judge Stefan R. Underhill agreed, dismissing the suit.
But as we reported last year, the Second Circuit reversed Judge Underhill, holding that the fax could be considered an unsolicited advertisement. At the pleading stage of the litigation, it was too soon to dismiss the case, the federal appellate panel wrote, but after discovery, Boehringer could rebut the inference of a commercial purpose “by showing that it did not or would not advertise its products or services at the seminar.”
On remand to the District of Connecticut, the parties engaged in discovery and the defendant then moved for summary judgment. Again, Judge Underhill sided with the defendant, ruling that no commercial nexus existed between the fax and the dinner meeting.
Physicians Healthsource offered no evidence that Boehringer actually promoted flibanserin at the dinner meeting, the court said. The speaker at the dinner meeting testified that he was not permitted to mention flibanserin during the program because the drug had not yet been approved by the FDA, and the slide presentation similarly failed to mention the drug or any other Boehringer product. Of the 40 slides presented at the meeting, just two included Boehringer’s name and logo: one with a copyright notice and another stating that “Boehringer … has provided financial support for this program.”
Although the Second Circuit indicated that the lack of FDA approval was not necessarily inconsistent with the mention of possible future availability of the drug at the dinner meeting, “the uncontested evidence shows that no such mention was made,” the court said. “Indeed, [the presenting doctor] testified that because the ‘FDA is a conservative regulatory body,’ he regarded it as ‘[v]ery important’ not to ‘go off script,’ and carefully ‘follow[ed] th[e] [agency’s] guidelines.’”
“Thus, because Boehringer has provided ‘evidence showing that it did not feature its products or services at the seminar,’ it has rebut[ted] the inference that ‘the fax had the commercial purpose of promoting … products or services,’” Judge Underhill wrote.
Physicians Healthsource was adamant that the dinner meeting—even without reference to flibanserin—was part of a robust marketing campaign on the part of the defendants to create demand for the drug, but the court found this overinclusive interpretation of an “advertisement” swept far beyond the scope of the TCPA.
Adopting the plaintiff’s position would mean that a pharmaceutical company that sold anticoagulants could not send faxes promoting a charitable blood drive it sponsored, notwithstanding that none of the company’s products were mentioned, the court said; nor could a women’s health organization send faxes announcing a purely educational session on women’s heart disease, so long as that session was paid for by a company that elsewhere marketed cardiovascular medication to women. Such a result was incompatible with the statute, the judge ruled.
“For one thing, Boehringer sells drugs, not diseases,” the court wrote. “More importantly, Physicians Healthsource’s attenuated notion of ‘advertising’ would go far beyond the TCPA and effectively ban all corporate public service announcements. … Physician Healthsource’s interpretation would force any faxes with a general business purpose—in the case of a for-profit entity, virtually all of them—into the prohibited category of advertising. Nothing in the TCPA suggests that Congress intended the statute’s proscription to be so broad.”
Under the facts of the case, “the relationship between the fax and Boehringer’s expected ‘economic benefit’ is far too ‘ancillary, remote and hypothetical,” the court added.
“Physicians Healthsource would interpret the TCPA as imposing a per se ban on faxed invitations to free seminars, a reading that the Second Circuit already rejected. Reasoning that ‘not every unsolicited fax promoting a free seminar’ violates the TCPA, the Second Circuit invited Boehringer to ‘rebut at the summary judgment stage with evidence showing that it did not feature its products or services at the seminar.’ Boehringer has now done so. The undisputed evidence shows that the seminar did not ‘adverti[se] the commercial availability or quality of any property, goods, or services.’ Therefore, the faxed invitation was not an ‘advertisement,’ and the defendants are entitled to judgment as a matter of law.”
To read the memorandum of decision in Physicians Healthsource v. Boehringer Ingelheim Pharmaceuticals, click here.
Why it matters: With a practical interpretation of the term “advertisement” under the TCPA, the Connecticut district court handed the defendant a victory with the grant of summary judgment. The court refused to adopt the plaintiff’s broad reading of “advertisement” to impose a per se ban on faxed invitations to free seminars, finding the relationship between the fax at issue and the defendant’s expected economic benefit too attenuated to warrant liability under the statute.