The Third Circuit Court of Appeals recently ruled in favor of S.A.S.B. Corp., a Florida pharmacy, in a case involving unsolicited advertisements sent via fax by Johnson & Johnson Health Care Systems Inc. and Janssen Pharmaceuticals Inc. The court's decision, filed on August 7, 2026, reverses a lower court's dismissal of S.A.S.B.'s complaint under the Telephone Consumer Protection Act (TCPA). This ruling is significant as it clarifies what constitutes an advertisement under the TCPA and could impact how companies communicate with potential customers.
S.A.S.B. Corp., which operates Okeechobee Discount Drugs, filed a class-action complaint against Johnson & Johnson and its subsidiary, Janssen Pharmaceuticals, alleging that they sent an unsolicited two-page fax advertisement to its office. The fax promoted Janssen's CarePath service, which assists patients in affording their medication, specifically the anticoagulant drug Xarelto. The case was initially dismissed by the United States District Court for the District of New Jersey, which ruled that the fax did not qualify as an advertisement under the TCPA.
The dispute arose when S.A.S.B. claimed that the fax violated the TCPA, which prohibits sending unsolicited advertisements via fax machines. The lower court found that the content of the fax did not meet the definition of an advertisement. However, S.A.S.B. argued that the fax promoted Xarelto and aimed to drive profits for Johnson & Johnson and Janssen Pharmaceuticals.
The Third Circuit Court of Appeals, led by Judge Ambro, disagreed with the lower court's ruling. The court stated that a reasonable factfinder could determine that the fax was indeed an unsolicited advertisement under the TCPA. The court emphasized that the TCPA defines an advertisement as any material promoting the commercial availability or quality of goods or services. The court noted that the fax included information about how to lower out-of-pocket costs for Xarelto, which could influence purchasing decisions.
The court ruled, "A reasonable factfinder could determine that this fax promotes Xarelto with profit as an aim," indicating that the content was promotional in nature.
In its ruling, the court highlighted that the fax's first page reassured readers about the support available through Janssen CarePath, while the second page provided information about Xarelto's uses and side effects. The court found that the combination of these elements constituted an unsolicited advertisement. The court also pointed out that the lower court's conclusion that the fax lacked a commercial tone was flawed, as the context of the language used in the fax suggested a promotional intent.
Furthermore, the court addressed the argument from Johnson & Johnson that S.A.S.B. failed to sufficiently allege that the fax was sent by them. The Third Circuit ruled that S.A.S.B.'s complaint provided enough factual allegations to suggest that the defendants were responsible for sending the fax, thus allowing the case to proceed. The court stated that the allegations were plausible and did not require a heightened standard of proof at this stage.
The ruling from the Third Circuit has significant implications for businesses that communicate with customers via fax. It clarifies that even informational content can be considered an advertisement if it promotes a product or service with profit as an aim. This decision may lead to increased scrutiny of how companies use fax communications and could result in more lawsuits under the TCPA.
Going forward, the ruling sets a precedent that could influence similar cases involving unsolicited advertisements. Businesses may need to reevaluate their marketing strategies to ensure compliance with the TCPA, particularly when using fax machines for outreach. The decision reinforces the importance of understanding the legal definitions surrounding advertisements and the potential consequences of unsolicited communications.
As for what’s next, it is unclear whether Johnson & Johnson will appeal the Third Circuit's decision to the Supreme Court. The case could also lead to further litigation as S.A.S.B. seeks to advance its claims against the pharmaceutical giants. Details were not available in the court filing regarding any related cases pending.