Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharmaceuticals, Inc., 847 F.3d 92

Background

On April 6, 2010 Boehringer (a pharmaceutical company) faxed doctors an unsolicited invitation to a free dinner meeting titled “Recognizing Female Sexual Dysfunction (FSD) and Diagnosing Hypoactive Sexual Desire Disorder (HSDD),” sponsored by Boehringer and featuring a physician speaker.
Physicians Healthsource sued as a class, alleging the fax was an “unsolicited advertisement” under the TCPA (47 U.S.C. § 227) and lacked the required opt‑out notice, seeking statutory damages and injunctive relief.
Boehringer moved to dismiss under Rule 12(b)(6); the district court granted the motion after taking judicial notice of FDA records showing Boehringer had applied to market flibanserin (a drug for HSDD) that was not yet FDA‑approved.
The district court held the fax did not plausibly show a commercial purpose or that the seminar was a pretext to promote Boehringer’s products, so it was not an “unsolicited advertisement.”
The Second Circuit reviewed de novo, applying Twombly/Iqbal plausibility standards and the FCC’s 2006 Rule interpreting “unsolicited advertisement,” and vacated and remanded, holding the complaint plausibly alleged a commercial purpose.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the unsolicited fax invitation constituted an “unsolicited advertisement” under the TCPA	The free seminar invitation promoted Boehringer’s business (FSD/HSDD) and thus plausibly served a commercial purpose to promote its products	The fax was informational about a medical lecture and did not on its face advertise or promote any product; any commercial tie (flibanserin) was speculative	The complaint sufficiently alleged a commercial nexus at the pleading stage; plausibly an advertisement, so dismissal was improper
Standard for pleading a fax as an advertisement under the FCC’s 2006 Rule	The Rule treats faxes offering free seminars as advertisements; pleading that the seminar relates to defendant’s business suffices	Plaintiff must plead specific facts that defendant advertised or planned to advertise products at the seminar	The court held that alleging a free seminar on a topic related to the sender’s business gives a plausible inference of commercial purpose; defendant may rebut after discovery
Relevance of FDA application for an unapproved drug	Supports inference that the seminar related to a product the company intended to market, reinforcing commercial purpose	Because the drug was unapproved, Boehringer was prohibited from promoting it; the mere existence of an application does not make the fax an advertisement	The FDA application is relevant but not dispositive; it supports the plausible inference but does not decide the case at pleading stage
Whether the FCC’s 2006 Rule creates a per se rule that all faxes offering free seminars are advertisements	Plaintiff favored a broad reading that such faxes are per se advertisements	Defendant (and some courts) read the Rule more narrowly, requiring evidence of commercial pretext or promotion	The panel rejects a per se rule at pleading stage but notes the Rule supports a reasonable presumption that such faxes often have commercial purpose; separate concurrence observes other courts might read the Rule more categorically

Key Cases Cited

Chambers v. Time Warner, 282 F.3d 147 (2d Cir.) (2002) (pleading standards and drawing inferences on Rule 12(b)(6) review)
Resnik v. Swartz, 303 F.3d 147 (2d Cir.) (2002) (interpretation of administrative regulations)
Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir.) (2010) (permitting pleading on information and belief when facts are peculiarly within defendant’s control)
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (application of plausibility standard)
Gager v. Dell Fin. Servs., LLC, 727 F.3d 265 (3d Cir.) (2013) (TCPA is remedial and construed to benefit consumers)