Fax to Doctors May Violate Law Against Junk Faxes - U.S. Second Circuit
U.S. Second Circuit - The FindLaw 2nd Circuit Court of Appeals Opinion Summaries Blog

Fax to Doctors May Violate Law Against Junk Faxes

There's no such thing as a free lunch and apparently no free dinners either -- at least not unsolicited fax invitations for dinner and a business show.

The U.S. Second Circuit Court of Appeals said that an unsolicited fax for a free dinner may have violated the Junk Fax Protection Act of 2005. Although a trial judge ruled the invitation was not a prohibited advertisement, the appeals court said it was close enough because the dinner had a business purpose.

Boehringer Ingelheim Pharmaceuticals, Inc. had faxed doctors an invitation to a free dinner and a presentation about a physical disorder. The company was waiting for FDA approval of its drug to treat the disorder at the time.

"The fax invitation was sent to a doctor, whom Boehringer would presumably hope to persuade to prescribe its drugs to patients," Judge Ralph K. Winter wrote for the court. "Therefore, facts were alleged that Boehringer's fax advertised a free seminar relating to its business."

Just a Taste

The case started after the pharmaceutical company faxed doctors to come to the dinner event entitled, "Recognizing Female Sexual Dysfunction and Diagnosing Hypoactive Sexual Desire Disorder." The invitation said that 43% of America women have experienced a sexual problem in their lives and 9.5% of them had 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.,' the fax said. "We hope you will join us for this informative and stimulating program."

Physicians Health Resources, Inc., on behalf of many doctors, sued and sought damages of $500 for each unsolicited invitation. The trial judge dismissed the complaint, finding that it was not a commercial advertisement.

On appeal, the Second Circuit disagreed and remanded. The fact that the company had developed a drug to treat the disorder was key.

Just Saying

In a concurring opinion, Judge Pierre N. Leval pointed out "obvious" commercial nature of the invitation. He said it was a pretext for the company to invite doctors to a free dinner and a presentation about a condition that its drug could treat.

He said the Federal Communications Commission, which enacted regulations under the Junk Fax Protection Act, intended to spare consumers from the "menace" of unsolicited faxes. He quoted the regulations, saying:

"The Commission concludes that facsimile messages that promote goods or services even at no cost, such as free magazine subscriptions, catalogs, or free consultations or seminars, are unsolicited advertisements ..."

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