THE FAX SPEAK FOR THEMSELVES: Third Circuit Revives TCPA Class Action Against J&J and Holds a “Patient Support” Fax Can Absolutely Be an Advertisement

Hi TCPAWorld!

 

Junk fax cases are supposed to be the sleepy corner of the TCPA, this week shows otherwise. 

 

On August 7 the Third Circuit reversed a dismissal and held that a two-page fax about a drug maker’s patient assistance program was plausibly an unsolicited advertisement. S.A.S.B. Corp. v. Johnson & Johnson Health Care Systems Inc., No. 25-2302, 2026 WL 2276867 (3d Cir. Aug. 7, 2026).

If your compliance team has been telling itself that a fax is safe because it says “support” instead of “buy,” read this one twice.

The fax

S.A.S.B. Corp. runs a pharmacy in Florida called Okeechobee Discount Drugs. It received a two-page fax from two J&J subsidiaries — Janssen Pharmaceuticals, which sells the anticoagulant Xarelto, and Johnson & Johnson Health Care Systems, which runs a program called Janssen CarePath.

 

Page one was all CarePath. Once you and your doctor decide Xarelto is right for you, CarePath will help you get started and stay on track. No matter what insurance you have, or if you have none, CarePath can help explain your coverage and help find programs that may help you pay for the drug.

 

Page two was the clinical stuff. What Xarelto is for, what the side effects are. It closed by telling the reader to explore savings options at the CarePath website and calling Janssen a partner for cost support.

 

The pharmacy filed a one-count class action in the District of New Jersey. Defendants moved to dismiss twice. The second time, Judge Quraishi held the fax simply was not an advertisement and declined to reach anything else.

 

Reversed.

Two prongs, and a coupon

The Third Circuit’s test is short. A fax has to promote goods or services to be bought or sold, and it has to have profit as an aim. Millenium, 58 F.4th 93, 96 (3d Cir. 2023); Optum, 925 F.3d 129, 133 (3d Cir. 2019); Fischbein, 959 F.3d 559, 562 (3d Cir. 2020). Both prongs get an objective standard. And the court said the whole exercise should be approached with a measure of common sense, citing Chesbro.

 

Here is the allegation that did all the work: A month of Xarelto costs around $400. A month of Warfarin, the generic substitute, costs around $20. Plaintiff alleged that CarePath exists to shrink that gap so the brand drug can compete with the cheap one.

 

Frame it that way and the panel’s conclusion writes itself. A patient who hears about CarePath is more likely to pick Xarelto. So, the fax promotes Xarelto by advertising its affordability, the same way a coupon promotes a product by knocking money off the price. And a promotion of that kind obviously has profit as its aim.

 

That is the sentence to circle. Savings messaging is product messaging.

“Support,” “explore,” “explain,” “help”

The district court had pointed to those four words and found the fax lacked a commercial tone.

 

The panel was not impressed. Pulled out of their sentences, sure, those words sell nothing. Read in context, they do plenty. “We can help you explore options to lower your out-of-pocket cost for Xarelto” is not a neutral offer of assistance. Quoting the Seventh Circuit’s Smith v. First Hospital Laboratories, 77 F.4th 603, 611 (7th Cir. 2023), the panel said sentences like that plausibly urge a purchase by emphasizing affordability.

 

Softening the verbs does not soften the pitch.

You cannot staple your way out of it

Defendants leaned on page two. It is clinical information. Informational faxes are not ads. See Sandusky Wellness Center v. Medco Health Solutions, 788 F.3d 218 (6th Cir. 2015).

 

The court granted the point in isolation, then shut the door: defendants cannot avoid TCPA liability by tacking an informational one-pager onto an unsolicited advertisement. It also noted that page two circled right back to CarePath anyway.

 

The pages get read together as one document. That is a real practice change for anyone building “educational” fax templates with a savings blurb at the bottom.

And no, you do not have to plead the fax log

Because the district court never reached it, the panel took on the sender question too, and plaintiff won that one as well.

 

The complaint alleged Defendants or somebody acting on their behalf sent the fax. Calling the document an “advertisement” may have been conclusory, but the sender allegations were not. The fax spoke in Defendants’ own voice, in the first person. It carried the Xarelto trademark and logo and the CarePath name and logo. The patient’s personal information appeared to have been merged in from a targeting database.

 

Defendants said plaintiff should have pled something about a fax cover sheet or a fax log. The court declined to invent a heightened pleading standard, pointing at Rule 11 as the check on sloppy allegations.

 

Defendants also argued that a fax containing a specific patient’s name and prescription number was much more likely to have come from the prescribing doctor. The panel’s answer is one every defense lawyer already knows and every defense lawyer keeps testing anyway: plausibility is not probability. Doe v. Princeton Univ., 30 F.4th 335, 344 (3d Cir. 2022). The court’s job is not to pick the likeliest sender at the pleading stage.

 

For good measure, plaintiff alleged the prescribing doctor sat in the Eastern time zone while the fax header showed a Central time zone origin. Small fact. Did a lot of damage.

 

Last, the Rule 8 group pleading argument failed too. Both defendants are J&J subsidiaries, both were on notice that each was accused of sending the fax, and plaintiff was candid that it does not yet know how creating, authorizing, and transmitting were divided up. That information is peculiarly within defendants’ possession. Lincoln Benefit Life Co. v. AEI Life, LLC, 800 F.3d 99, 107 n.31 (3d Cir. 2015). Discovery it is.

Takeaways

First, If a fax tells the reader how to pay less for your product, treat it as an advertisement. The coupon analogy is now Third Circuit law, and it is going to travel. Then, Stop trying to fix a promotional fax by adding a clinical page. Courts read the document as a whole, and a “learn more about savings” line at the bottom undoes the whole strategy. Third, Word choice is not a defense. “Support” and “help” and “explore” read exactly like sales copy when they are attached to price. Fourth, Do not count on winning the sender fight at 12(b)(6) when your own logo, your own trademark and your own first-person voice are sitting on the page. That is a summary judgment argument, and you will pay for class discovery to get there. And last, compare this to the district court decisions tossing complaints that plead only “Defendant and/or its agents.” The difference is not the pleading standard. It is whether the message itself points at the defendant. Branding is evidence.

 

We’ll keep you posted, TCPAWorld!