Third Circuit: Free Opioid Seminar Fax Was Not an Unsolicited Advertisement

The bottom line: whether a fax is an ad is judged objectively. A purely educational invitation, followed by a purely educational event, is not one.

Here is what happened

Millennium Health LLC is a drug testing and medication monitoring laboratory. Dr. Robert Mauthe's practice used its services from time to time and provided its fax number. On May 2, 2017, Millennium faxed all of its customers a one-page flyer for a free seminar on national trends in opioid misuse and the role of medication monitoring in caring for injured workers.

The fax did not mention Millennium's opioid testing service, prices, discounts, coupons or product images. The seminar, broadcast three weeks later, reviewed several testing methods without identifying providers or prices. Millennium did not follow up with registrants or attendees.

Mauthe's practice filed a putative class action. The opinion notes that his office had sued fax senders in more than ten TCPA lawsuits since 2015. After limited discovery on whether the fax was a pretext for advertising, the district court granted summary judgment to Millennium.

The law

The TCPA prohibits faxing an "unsolicited advertisement," which is defined as material "advertising the commercial availability or quality of any property, goods, or services." 47 U.S.C. § 227(a)(5). In the Third Circuit, a fax must "promote goods or services to be bought or sold" and "have profit as an aim."

In 2006, the Federal Communications Commission (FCC) said that faxes promoting "free" seminars are presumed to be advertisements because such seminars often serve "as a pretext to advertise commercial products and services."

The decision

The panel of Judges Krause, Phipps and Fuentes affirmed.

1. Objective standard. Whether a fax is an advertisement does not depend on the subjective views of the sender or recipient.
2. No reasonable recipient would see an ad. The fax made no mention of goods, services or property. It offered no testimonials, images, coupons or purchase links. It was "purely educational."
3. Pretext theory would not change the result. Even if the court considered the seminar itself, it contained no solicitation, and Millennium made no follow-up sales contact. The court did not address whether the pretext theory is valid.

Judge Phipps concurred. He would have rejected the FCC's pretext theory outright, reasoning that the statute defines an advertisement by reference to "the material transmitted," not facts outside the fax.

Why it matters

This decision, along with the Seventh Circuit's later ruling in Ambassador Animal Hospital v. Elanco, narrows junk fax exposure for genuinely educational outreach. The Fourth Circuit has taken a broader view when the event topic relates to the sender's products. The record mattered here: the defendant could show the seminar itself was sales-free and that no follow-up occurred.

What this means for you

1. Keep educational invitations devoid of product names, prices and purchase links.
2. Keep the event itself educational if you want to rely on this decision.
3. Do not use registrations as sales leads. Follow-up selling undermines the defense.
4. Preserve the content of every event, including slides and recordings.
5. When in doubt, seek prior express permission before faxing.

Education and promotion can coexist, but not in a fax sent without permission.

Read the Third Circuit's opinion in Mauthe v. Millennium Health.