TCPA Ruling: Health Insurance "Update" Fax Is Not A TCPA Advertisement

A federal court ruled that a fax sent by a pharmacy benefit manager ("PBM") to healthcare providers notifying recipients of changes to insured parties' coverage for prescriptions – the fax mentioned the PBM's business but did not promote any products or services – did not constitute an "advertisement" under the Telephone Consumer Protection Act, 47 U.S.C. § 227 ("TCPA"). The court applied the "commercial nature" test for a TCPA advertisement.

CaremarkPCS Health, LLC, a PBM which manages prescription drug benefits for health insurers ("Caremark"), sent an unsolicited fax to more than 55,000 health care providers notifying them of new supply limits on coverage for opioid prescriptions for certain patients covered by plans sponsored by Caremark clients.