The TCPA and the rules and regulations within are, essentially, all designed to protect people from receiving calls and text messages from companies to whom they have not given consent to contact them. There are nuances, of course, about the different ways that consent can be given and the different types of messages that can be received, as well as some stipulations that we won’t get into here. But one of the key components of the TCPA that governs whether or not litigation can be brought against companies for unlawful calls or messaging is that said calls and messages must be used for marketing purposes. There have been a few cases recently that have looked at the exact meaning of marketing, as defined by the TCPA, and how marketing messaging can be distinguished from informational. Here, we’re diving into that distinction.

At their most basic, marketing messages, or advertisements, are those that attempt to convince you to purchase a specific item, while informational messages merely provide information about an item. In a TCPA class action case that was dismissed last month, the court ruled in a way that narrowed the definition of marketing messages. The case was brought against Johnson & Johnson regarding faxes they were sending to pharmacists who sell their drug Xarelto. The faxes promoted a service called CarePath, which patients can use to get discounts on Xarelto. The plaintiff argued that the fax was an advertisement for Xarelto, since there was an entire page of information about Xarelto and the facts that patients would need to know about the medication if they were taking it. However, the court determined that the information was directed at patients who have already been prescribed Xarelto and that “Neither page of the Fax discusses the quality of Xarelto as a drug at all, for example by comparing its quality to that of similar medications. (See Fax.) The Fax also does not discuss the commercial availability of Xarelto. (See id.)…  In sum, the Court concludes that the purpose of the Fax is not “to influence a potential buyer’s decision in making a purchase,” but to inform a patient about relevant medical and insurance information.”

That is the crux of this decision. The court decided that, even if information is sent that could ultimately influence a person’s decision about whether or not to purchase an item, it is the purpose of the message that matters. If there is no specific information about where or how to buy the product, this court says that the message is not technically marketing. Furthermore, since the message was technically about a free service that could help consumers save money, it was not determined to be marketing—even though a downstream result of using the service might be more purchasing of the product.

It’s very possible that other courts, when faced with similar cases, may rule in a different way. But at least at this point, by narrowing the definition of marketing messages, it also provides companies with a bit more flexibility in the types of informational messages they can send. If there is no specific call to action encouraging consumers to make a purchase, it may not technically be a marketing message that’s subject to the regulations of the TCPA.

If you have questions about the TCPA or other issues of call center compliance, we would love to cover them. Contact us today!