PBM’s Policy Update Fax Not TCPA “Advertisement,” Says Eastern District of Missouri

Earlier this week, the U.S. District Court for the Eastern District of Missouri granted summary judgment for a pharmacy benefit manager (PBM) that allegedly violated the TCPA by sending unsolicited advertisements via fax to thousands of healthcare providers. The defendant was entitled to judgment as a matter of law, the court concluded, because the fax simply notified recipients of changes to insured patients’ coverage and did not promote any products or services.

The case began when a St. Louis healthcare provider (BPP) filed a complaint alleging that defendant CaremarkPCS Health, LLC, violated the TCPA when it sent an unsolicited fax to over 55,000 providers notifying them of new limits on insurance coverage for opioid prescriptions for pediatric and adolescent patients in plans sponsored by Caremark’s clients. BPP v. CaremarkPCS Health, LLC, No. 4:20-cv-126, 2021 WL 5195785, at *1 (E.D. Mo. Nov. 9, 2021). Caremark, which manages prescription drug benefits for various health insurers, asked for summary judgment on the ground that the fax was not an “advertisement” under the TCPA and that plaintiff’s claim therefore failed as a matter of law. Id.