Wednesday, June 5, 2013

Junk Faxes 101: Reminder Regarding Law, Marketing, and Unsolicited Faxes from Compounding Pharmacies

The Telephone Consumer Protection Act, 47 U.S.C. §227 (“TCPA”), (to read entire statute click here), prohibits compounding pharmacies from sending unsolicited materials advertising their compounded product to doctors, dentists, veterinarians, hospitals etc. Specifically, section 227 makes it a federal violation to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement (a "junk fax") to a telephone facsimile machine.  TCPA gives private citizens the right to sue to: (i) enjoin future transmissions, (ii) recover the greater of actual monetary damages or $500 in damages for each junk fax, or (iii) an injunction plus damages.  If the court finds that the sender willfully or knowingly violated the Act, the court may increase the award up to three times the amount of damages.  Note, however, that not every fax is a junk fax that violates the federal law.  To be subject to TCPA, a fax must be an "unsolicited ad."  An ''unsolicited advertisement'' is any material advertising the commercial availability or quality of any property, goods, or services that is transmitted to any person without that person's prior express invitation or permission.  Many states have also enacted anti-junk fax laws.  A number of good articles about this subject exist on the Internet to educate yourself more in this area. One to start with is Richard Keyt, Federal Junk Fax Law Prohibits Sending Unsolicited Ads To Fax Machines,docket and complaint (December 3, 2001).

As previously noted on this blog, a case is currently pending LOWLITE INVESTMENTS, INC., doing business as OLYMPIA PHARMACY, and JOHN DOES 1-10  That will be a very interesting to case to watch since it deals specifically with an unsolicited advertisement sent from a compounder to a veterinary clinic.



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