well here the next case is the zany versus rite aid case presents a pretty straightforward issue does it not whether the the health care mess if this was a whether this was a health care message which is an exception and notwithstanding the fact that it might have also been served other bad there's a distinction between an advertisement and health care and so what the f when the f c c created this exemption it was clear that it wasn't trying to create an exemption for advertisements because it in fact did not have the authority to create an exemption for advertisements under the statute and so you have to look at whether of what if it serves a message of advertising and as a health care message the f c c has addressed this issue in the context of its of its rules and the and what you do is you look at the primary purpose of the communication and purpose is always to make money isn't it i mean they're not in the rite aid right it yeah right it is not a charity they're not  public service announcement the public service announcement business they're in the business of selling health care services as for that matter are doctors so when they say get a flu shot there and by the way we can provide food shots they're not doing that primarily out of this interest they're doing it for commercial reasons if they weren't doing it for commercial reasons you wouldn't need an it wouldn't come with an exception because it would come within the provision i understand that there will often be a financial incentive behind communications from a health care provider to its patients however in this case there is no evidence of any health care purpose the only evidence is of a marketing purpose the message here any different from from its longer substantively is any different from the message in the latter case well in terms of the text of the message itself i think what we have here is we have language that is identical to right aids radio and television advertisements for the flu shot and laettner we said that this text about it's flu season time schedule a flu shot that that's a health care message how is the message here substantively different from that other than being a little bit longer there's two fundamental crucial differences with the latter case the first is that the plaintiff in latin  had conceded that it was a health care message the issue was never in dispute before this court the second is in terms of the evidence of the purpose of the message there was no evidence of a marketing purpose and latin or her e there is only evidence of a marketing purpose what i'm gathering from your answer is that in terms of the words there isn't a substantive difference except except for the fact that there are words here in these in the that are taken directly from the radio and television ad was that matter i mean in all kinds of radio and television advertisements there are all there was a lot of information given and a lot of misinformation given so the fact and it's about different subjects in the course of an ad so why would the fact that the same words appear in what is concededly an advertisement automatically make this an advertisement depending on what the words are it's not automatic the point is that the perp that the district court needs to do a factual finding about the purpose and i don't message me to be an entirely on workable standard here if it's not about the content then how then every case is going to be an expensive litigated discovery rich inquiry into the subjective motivations of the company right well i don't think that's anything unique to that area i mean why should that be in this case if the message that's going out to the public can be objective leak classified one way or the other and maybe you have good arguments as to why this should be objective  classified as an advertisement why isn't that the right standard to apply rather than to look to the subjective motivations because i guarantee you if anybody from right it comes in and answers honestly they're going to have to say the reason we're doing this is spending money to make money that's what we do well there's two points i'd like to make their first is because that's what the f c c says the f c c said in its calls pharmacy decision that restrictions on advertisements were left in place and it did what it did is it engaged in a primary purpose analysis about what the purpose of the communication was and it held that the flu shot communication there was not a health care message that based on  subjective inquiries it was that based on what the message said it was based on the evidence as to the purpose of the me was if that evidence in the coles pharmacy case i don't recall exactly what the evidence was but that's maybe why should we be worried about what they called it or what they said if the issue for me is what is the message that's going out because it an advertisement i mean you know we're exposed to lots of advertisements everybody in america is the we know when we see him so why can't we just decide whether this is an advertisement or not well we're primarily a health care plan primarily and if it's an advertisement then it doesn't qualify for the health care message exemption i'm saying i'm saying we should look at it and decide what we think it is inherently based on the language not by calling up a dozen witnesses and testing their credibility and trying to figure out where they really trying to make money where they really trying to help the public because i guarantee you each and every time they were really trying to make money well and i think it's beyond that the evidence is beyond that in this case but and so i hear your point if you determine that this is an advertisement then you can then you could enter that ruling and it would not qualify for the health care exam but what else is it i think what direction was asking was why look at the purpose language that makes it into an advertisement rather than a health care message big because all of the evidence shows so so if you look at the f c c rules actually words not other things the words i'm getting a call and i'm getting a call that relates to health care on get am i getting it it is a relate to my health care i went there a year ago and i got a shot and now it's flu season again and they're telling me you know this is a good time to come in and get another one and that doesn't you know i mean that's that's that's those are the circumstances that we're looking at that's true is perspective that's true and i guess i want to reiterate that the f c c rules say that you don't look at the words you have to look at the purpose as well in addition to that what this court did in laettner was it looked only at hipaa so even if you reject the idea that you have to look at the f c c he's definition of advertisement and you look only at hipaa as this court did in latin or you look at the definition of marketing in hipaa and the definition of marketing in hipaa also requires a determination as to the purpose of the mess the the fundamental problem is that if you just have a one word statement then if it's clearly an advertisement then it would indicate that it's not truly health care that the hip is rule requires care directed related to that to the health of an individual it's said was you came in last year you got a flu shot we flew season again you signed this thing saying we could call you about this stuff please come and get another health care thank you from your local rite aid pharmacy in that instance we would still have to in your view gauge in a subjective inquiry as to what was the purpose of that message well i don't know that it would be a subject of inquiry but you wouldn't if you would look at the evidence and what do we mean well you would look at the objective evidence and determine what the primary purpose was it's not about the subjective from the vantage point of writing that's the question what was their subjective goal not how would a reasonable person read this message but what is the purpose of writing and so there would not be summary judgment in that case there would not be summary judgment in a case that said it's flu season it's really bad this year and there's a vaccine available it's time to get a flu shot thank you rite aid that would not be a summary judgment as a health care message because we would have to inquire as to what are they up to in sending this message well you would you could also look at the context was there a flu epidemic at the time there wasn't in this case and so the point is that there is there are all kinds of there's no science in demick they just say it's flu season time for a flu shot please come get one from your local rite aid pharmacy that is not a health care message necessarily as a matter law as a matter of law you look at the primary purpose of the communication so there is nothing that is as a matter of law on its face a health care message i think you have to look at the evidence you have to look at the evidence because what the purpose of the communication is going to tell you and not whether or not it's actually providing health care i mean you can have we have your point where you have some rebuttal time thank you here for me  good morning may it please the court karen vogel on behalf of rite aid i do think it's a very straightforward question and i think that it is a simple question of is this a health care message if it is a health care message then it comes within the exemption  that under the telemarketing rule and it affects the kind of consent that is required for that health care message in this case that consent was given there is no dispute about the level of consent that was given here the prior expressed consent that was also the issue that was addressed in the latter case whether that consent was sufficient in this case is very similar to latin or in that it except for as the court  this obviously it must not be because you're not even saying it is express written consent but it wasn't writing wasn't there is a difference under the law between express prior express consent and prior expressed written consent the prior expressed written consent is interpreted to mean requiring something greater which is i consent to you calling me at all hours a day or night with any kind of robocall you want to give and just so with the prior prior express consent you just have to give your phone number and the flu shot went out to people who got it from years previous when call went out and that was all that was received in this case we don't think that there's any dispute off in the face of the message that it was care message if you look at it objectively you can see it says get your flu shot ok take out everything there were the only thing in it that tied it to write it was write its name in the thing but i don't know how you can make a flu shot the health care message of a flu shot reminder call is to remind you to get the flu shot it's not just that there's flu out there it's that you need to get a shot and so that that kind of is part and parcel of the message i don't know how you would separate that marketing aspect if you want to call it that from the that the right it is in the in the business it's a process for profit corporation i think that that can be taken judicial notice of that it's there to make money it's not going to do things that don't make money for it and that certainly is the benefit of this health care message to rite aid but it also provides the health care message that under the regulations is exempt from that prior written expressed prior express written consent which would be consent to any kind of thank your honour's i want to ask the court to look at this at beyond the context of just a flu shot because you're deciding what the rule for telemarketing of all health care products are going to be the district court's decision would allow radiate or any other pharmacy to robocall advertisements to someone that had purchased heartburn medication that there's a sale on heartburn medication the test can't be that the cost simply mentions a health care product right doesn't that sound different if they say oh we've got you know x y z medications for cheap doesn't that sound more like that sounds different but get rid of the language that there's a sale just say come get your heartburn medication you purchased it two years ago that is an advertisement in the law and the f c c is clear that they want to distinguish between advertisements and true health care the district courts rule is too broad because it allows even generic advertisements of any health care product to satisfy the health care standard as long as someone had purchased it from them in the past and so that's why the purpose why isn't it inappropriate rule to say that a court should look at objective lee at what the message is and decide whether it is primarily addressed to legitimately to health care whether it's primarily an advertisement without the need to depose the person who created the message or the c e o of the company as to why they are engaged in this process because then you're fundamentally going to always have the same problem of well it mentions a health care product  it mentions a health care product and it's owned by the way whatever this stuff was flu zone is the greatest thing since sliced bread and by the way you might want to listen press one and listen to this other message about flu zone where somebody goes on and on about its tremendous benefits as compared with other similar products that would look much like an advertisement would it not and that would be very different than just get your damn flu shot at it but that's what it said it said come to write a pharmacy write a document said that the purpose was to drive consumers to their pharmacy to buy all kinds of products not just the flu shot once you're there you'll see that they've got a sale on condoms and you'll buy a million then that'll be make them a lot of money and the question not the question because congress an act of a statute that found that prerecorded robo calls are harmful and it limited the c is ability to create exemptions from that law and it said you can't create exemptions for telemarketing we don't want telemarketers to use these robo calls as a means of advertising products and what radiohead has done is telemarketing a health care product and the rule that you enact today is going to apply to every health care product not just flu shots in the district court's test is too broad we're going to make today is about this particular message