Drug & Device News

U.S. District Judge Stefan Underhill has dismissed a suit alleging Boehringer Ingelheim Pharmaceuticals of Ridgefield, CT, violated the federal Telephone Consumer Protection Act (TCPA) by inviting about 40 doctors by fax to a “dinner meeting” to discuss “female Viagra.” The suit was filed by a physicians' group that considered the fax an unsolicited advertisement in violation of the TCPA. Congress passed the TCPA in 1991 to protect consumers from receiving unsolicited phone calls and faxes advertising products and services for sale. Under the law, unsolicited advertisements like these are prohibited unless the receiver and the sender already have established a business relationship. The court determined that the invitation was not an advertisement because there was no female Viagra-type medication available for sale at the time of the dinner, and no mention was made in the fax of any specific product. Thus, the communication could not be considered an unsolicited advertisement under the TCPA.

Stephen Nevas of the Nevas Law Group was not involved in the case, but as co-chair of the Media and Law Section of the Connecticut Bar Association, he had this to say: “Two things stand out about this decision,” he said. “First, Boehringer was not proposing a transaction or seeking to market a product. Second, the court is not willing to find a violation of law based on speculative inference.” Nevas continued, “It is reassuring that notwithstanding the laws at play which raise significant First Amendment concerns, the court has erred on the side of speech when it is not absolutely clear that a violation occurred.”