In Brooks v. The Kroger Co., No. 3:19-cv-00106 (S.D. Cal. Aug. 12, 2019), Judge Anthony J. Battagalia found that automated calls from grocery retailer The Kroger Company warning about salmonella fit within the emergency exception to the Telephone Consumer Protection Act.

Plaintiff Derrick Brooks claimed that Kroger called him “for marketing purposes” using an automatic telephone dialing system, or “ATDS,” in violation of the TCPA when it called to warn him about salmonella-tainted beef that had been sold by the retailer. Brooks filed a class action lawsuit against Kroger over the calls. In support of his allegations, Brooks included excerpts from online consumer complaints, including quoting comments that the customer had received an “Automated call from Kroger” and a “Call from Kroger stores … .”

The Court rejected Brooks’ claims. The Court noted that the TCPA includes an explicit “emergency” purpose exception to the statute. See 47 U.S.C. § 227(b)(1)(A)(iii) (excluding a “call made for emergency purposes” from the statute); id. (b)(1)(B) (same). An emergency purpose is “any situation affecting the health and safety of consumers.” 47 C.F.R. § 64.1200(f)(4). According to the Court, a call made to warn about a health risk – such as salmonella-tainted beef – regarded a situation affecting the health of consumers.

The Court further found that Brooks had “purposely omitted details from customer complaint information … to make Kroger’s calls seem nefarious.” (emphasis added). The Court noted the complete context of both consumer complaints supported the TCPA emergency exception:

  1. Ivan – 6 Dec 2018 “Automated call from Kroger, requesting that you return ground beef that was purchased between August and September of 2018, due to the threat of salmonella. Stores would include Smith’s, Ralph’s, Baker’s and other Kroger stores.”
  2. Rizzo – 6 Dec 2018 “Call from Kroger stores advising that we purchased ground beef between Aug 15 & sept 10 , 2018. If you still have any in your freezer, be sure you return it back to the KrogercStore [sic].

The Court also refused to narrow the TCPA’s emergency exception. It found that “Kroger had a bona fide emergency in its tainted and potentially life-threatening beef, and thus called potential consumers of that beef to warn them.” Doing so was not a violation of the TCPA.

This decision is a victory for defendants as it affirms that the TCPA emergency exception is a legitimate protection for automated calls warning about risks to consumers’ health and safety.