Mass. Court Permits Pharmacy Mailing Program, But Requires Disclosure of Profits

Many pharmacies send letters to consumers advising them about refill or alternative products.  Generally, these “refill reminders” are paid for by pharmaceutical manufacturers.  A recent decision, however, will require more specific disclosure about the funding of such letters in the future.  The Superior Court of Massachusetts in Suffolk County recently decided that pharmacies can use a third party to send prescription-related letters to customers, but if they profit from sending the letters, they must disclose that information to recipients. 

In Kelley v. CVS Pharmacy, the plaintiff, Jeffrey Kelley, used a CVS pharmacy to fill his diabetes drug prescriptions.  In 1997, Mr. Kelley received a letter on CVS stationery from the “Staff of CVS/Pharmacy” explaining to him the detrimental effects of high cholesterol and the benefits of cholesterol-lowering medication, and encouraging him to have his cholesterol checked.  At the very bottom of the letter in small print was the statement “[f]unding for this mailing was provided by Merck & Co. Inc.”  CVS used a third party, Elensys, to send the letters.  Mr. Kelley sued on the basis that the letter violated his right to privacy and that CVS, Elensys, and Merck engaged in an unfair and deceptive act by sending the letters. 

The court held that the letter did not violate Mr. Kelley’s right to privacy.  In Massachusetts, an invasion of privacy requires an “unreasonable, substantial, or serious interference” with privacy.  In this case, CVS did not disclose Mr. Kelley’s name to Merck, and only provided his name, date of birth, and address (all of which is public information) to Elensys.  Elensys did not know why Mr. Kelley had been selected to receive the letter and did not receive any information about his medical or pharmaceutical history.  The court reasoned that there is nothing improper about a pharmacy reviewing its prescription database and providing relevant information to its customers, and that the fact that CVS used a third party to do this was essentially the same as hiring extra clerks to send the information directly from the pharmacy.  The court also noted that Mr. Kelley “readily disclosed” his diabetes to friends and associates, which made it “even clearer that the information disclosed by CVS cannot reasonably be deemed a substantial or serious interference with his privacy.” 

The court, however, did find that CVS engaged in an unfair and deceptive act by concealing the fact that it profited from sending the letters.  Merck paid CVS $2 per letter sent, but CVS only paid Elensys 93 cents per letter, with CVS pocketing the difference as profit.  The disclosure at the bottom of the letter did not mention that CVS profited from sending the letters.  The court explained that in order to fully evaluate the medical information in the letter, a patient should know that CVS is making a profit from the letters.  Although CVS could send information to its customers and drug companies could reimburse CVS for the cost of mailing, once CVS began to make a profit from the letters and failed to reveal this to its customers, it became an unfair and deceptive act.  Merck, for whose benefit the letter was sent, was also found liable. 

We note that the decision is consistent with what we have been hearing for several years from the offices of Attorneys General (most notably that of Florida) concerning similar pharmacy mailing programs.