A new TCPA suit highlights the tension over what constitutes an “advertisement” under the statute. In Mills Cashaway Pharmacy, Inc. v. Change Healthcare Inc. (M.D. Ten., Apr. 10, 2025) the plaintiff pharmacy alleged that it received an unsolicited fax from defendant Change Healthcare promoting the prescription drug Xarelto. Change Healthcare moved to dismiss, arguing the fax was purely informational. The court, however, found the complaint plausibly alleged that the fax constitutes an unsolicited advertisement under the TCPA, and allowed the case to proceed.
Mills Cashaway Pharmacy, Inc. (“Mills”), a pharmacy based in Parks, Louisiana, filed suit on August 9, 2024, asserting a single claim for violation of the TCPA. The complaint alleges that, in September 2020, Mills received an unsolicited fax on its dedicated fax line. The fax, purportedly sent by Change Healthcare, contained the name and prescription number of one of Mills’ patients and directed the reader to “visit Xarelto.com” for more information about the drug, including safety and side effect details.
Mills alleges that the fax was designed to promote a 90-day supply of Xarelto over a 30-day supply or a different drug altogether, encouraging recipients like the pharmacy to influence patient behavior and drive demand for the product. According to the complaint, the fax falsely stated that the patient’s insurance plan would cover the 90-day supply. Mills asserts there was no preexisting business relationship between the parties and notes that the fax lacked the statutorily required opt-out notice.
The TCPA prohibits sending a fax that is an “unsolicited advertisement” unless, among other requirements, the fax has a satisfactory opt-out notice. There is a private right of action for recipients of unsolicited advertisements with statutory damages of $500 per violation. Here, the parties did not dispute that the fax Change Healthcare sent to Mills was unsolicited and lacked an opt-out provision. The sole issue at dispute was whether the fax qualified as an advertisement within the meaning of the TCPA. Change Healthcare argued it did not, asserting that it merely provided information to a patient already prescribed Xarelto
The Mills court observed that under the TCPA, an “unsolicited advertisement” is defined as any material that promotes the commercial availability or quality of goods or services, sent without the recipient’s prior consent. The Court discussed several cases interpreting the TCPA’s definition of “advertisement”:
- S.A.S.B. Corp. v. Johnson & Johnson Health Care Sys. Inc. (D.N.J. 2024): The court ruled that a fax about Xarelto was not an ad, as it targeted patients already prescribed the drug and didn’t contain pricing or overt promotional content. The “overall thrust” of the message was deemed informational.
- Michigan Urgent Care & Primary Care Physicians, P.C. v. Medical Security Card Co. (E.D. Mich. 2020): In contrast, the court found a fax promoting a “free” prescription savings card to be an advertisement. Even though the program was free, the court determined that the fax supported the defendant’s business model, which depended on broad usage of the card, potentially impacting defendant’s profits.
- Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc. (6th Cir. 2020): A fax requesting updated contact information was ruled to be an advertisement because it was a pretext for future marketing efforts. The Sixth Circuit emphasized that courts must look beyond the face of the fax to its intent and commercial purpose.
In light of the above precedent, the Mills Court rejected Change Healthcare’s argument that the fax contained purely informational messaging. First, the Court noted that although the fax appeared to reference a specific patient, it was sent to the pharmacy—not the patient. Second, the message encouraged a switch to a 90-day supply, which the court found could reasonably be construed as promoting the commercial availability of Xarelto.
The court emphasized that determining whether a fax is an advertisement is not always obvious from its face. Citing Enclarity and Michigan Urgent Care, it reiterated that a defendant’s intent and the broader context may render an ostensibly informational fax commercial in nature. The complaint plausibly alleged that the fax was designed to increase sales of Xarelto by encouraging pharmacies to influence patient prescriptions—conduct that could be motivated by profits.
While the Change Healthcare argued the purpose was merely to notify patients of coverage and convenience, the court found that the plaintiff’s allegations and the content of the fax were sufficient, at this stage, to proceed under the TCPA’s definition of an advertisement.
The court’s ruling underscores a key principle in TCPA litigation: the determination of whether a fax is an “advertisement” often hinges not only on explicit language but also on the context, purpose, and business model underlying the message. Even materials presented as purely informational can support a TCPA claim if they plausibly serve a commercial aim.