A Florida pharmacy sued Johnson & Johnson under the federal junk-fax statute over a single two-page fax about Xarelto. The trial judge dismissed the case as informational. The Third Circuit just reversed and revived the pharmacy’s class action.
The pharmacy, SASB Corp., filed in the District of New Jersey under the Telephone Consumer Protection Act, the 1991 statute that lets fax recipients sue over unwanted fax ads. Statutory damages run $500 per fax, trebled to $1,500 for willful violations, and one class-wide fax blast is enough to compound the exposure into real money. That is why one fax to one Florida pharmacy generated a precedential appellate opinion instead of a small-claims footnote.
The fax at the center of the case had two pages, according to Law360’s account of the ruling. Page one promoted CarePath, J&J’s patient-support program for people already prescribed Xarelto: discounts, patient resources, help sticking with the therapy. Page two carried the standard prescription-drug safety block for Xarelto, with indications, warnings, contraindications, and side effects.
In August 2024, the district court dismissed the case. The court’s reasoning, summarized in a National Law Review write-up of S.A.S.B. Corp. v. Johnson & Johnson, 2024 WL 3949343 (D.N.J. Aug. 27, 2024), was that the fax targeted patients who had already been prescribed Xarelto, not prospective buyers, and did not promote the drug’s availability or quality. Informational, not commercial.
On Friday, in a precedential opinion under docket No. 25-2302, the Third Circuit reversed and sent the case back. Two pages of drug-safety fine print did not neutralize the first page’s pitch. Promoting a patient-assistance program that lowers the out-of-pocket cost of one specific brand-name drug is, on the Third Circuit’s read, promoting the drug.
The doctrinal line, drawn twice, in opposite directions
The Third Circuit’s read runs in the opposite direction from the Bluestone attorney-fax case we covered separately, where New York’s highest court held that 14 faxes titled “Attorney Malpractice Report” were not ads because the essays inside were substantive and the sender-identification at the top was incidental. Same TCPA. Same FCC rule that carves out “information, such as industry news articles, legislative updates, or employee benefit information.” Opposite result.
The distinction the Third Circuit drew: an “incidental” ad inside a genuinely informational communication is fine, but this fax was the other way around. The safety information was the incidental part. The promotional pitch was the point.
For a small pharmacy on the receiving end of that kind of blast, or any operation that mostly needs to send a one-time fax online when a prior-authorization insists on paper, the practical read is narrow. A drug-safety cover page will not neutralize a promotional first page. And a two-page fax that a court says is an ad is enough to keep a TCPA class-certification fight going for years after it landed.
Sources: Law360, “J&J Fax Sent To Pharmacy An Unwanted Ad, 3rd Circ. Says” (via the Google Alerts fax feed, 2026-08-09); S.A.S.B. Corp. v. Johnson & Johnson Health Care Systems Inc., No. 25-2302 (3d Cir. Aug. 7, 2026) (precedential); S.A.S.B. Corp. v. Johnson & Johnson Health Care Systems Inc., 2024 WL 3949343 (D.N.J. Aug. 27, 2024) (district-court opinion).