A class-action lawsuit targeting Albertsons, Inc., owner of Sav-on Drugs, Osco and Jewel-Osco pharmacies, charges the supermarket giant with violating customer privacy rights by illegally using confidential prescription information for marketing purposes.

Consumer advocacy group Privacy Rights Clearinghouse (PRC) and the law firm Finkelstein & Krinsk, both based in San Diego, filed the lawsuit in California Superior Court in San Diego County in May, and is still seeking plaintiffs.

PRC is gathering as many plaintiffs as possible who have received these mailers or telemarketing calls, and are willing to join in the suit, which involves releasing their identity and medical history to public court record, said PRC founder and director Beth Givens.

Large drug companies are able to target Albertsons’ pharmacy customers with marketing fliers and phone calls to renew prescriptions, switch to a newer version of the drug or try alternatives, because Albertsons sells access to its database of prescription information to the companies, the lawsuit alleges. It names many of the major pharmaceutical companies in the nation, including Eli Lilly & Co., Merck & Co., GlaxoSmithKline, Pfizer and Bristol-Myers Squibb Co.

Customers receive marketing calls and letters that appear as though they are coming from Albertsons, when they are actually coming from drug companies, PRC says.

PRC said Albertsons does not release the information directly to drug companies, but collects the data internally and publicizes the availability of that information to pharmacy companies looking to increase product loyalty or woo consumers into alternatives to their current prescriptions. According to internal records, the goal of the strategy is to increase drug consumption, said Jeffrey Krinsk of Finkelstein & Krinsk.

“It would be different if these were friendly reminder letters to individuals for all the medications they take, not just the ones they get paid for by the drug company,” Givens said.

Like most corporations across the country, Albertsons exercises an opt-out marketing policy, Givens explained. At the bottom of marketing letters, the consumer is offered the option to opt out by checking a box marked “opt out” and returning the form to Albertsons in order to be taken off the list. But this comes after the consumer’s privacy has already been violated, Givens said.

“I think they are probably either ignoring California law or they interpret it differently,” she said.

California is one of the few states with a constitutional right to privacy. PRC’s suit charges Albertsons is violating the state Confidential Medical Information Act because it does not let the customer know in a clear manner that their name, address, phone number, prescription and possibly underlying medical condition are being used for marketing purposes.

While merely an annoyance to many consumers, the advertising ploy can have serious consequences in some cases.

“Most people would rather have economic or financial information, like their tax return, made public than have their medical information released,” Krinsk said.

For example, an employee may have their insurance coverage compromised if an employer discovers marketing materials directed at the employee that reveals expensive health conditions; spouses who do not wish to disclose health conditions or treatment to their partners may be exposed when refill reminders arrived in the mail and telemarketers called the house; individuals living with HIV/AIDS or those with transgender maintenance regimes may suffer discrimination from landlords or housing co-ops when fliers directed at their treatment courses land in the wrong letter box.

In another instance, customers told to renew their prescription to VIOXX, an anti-inflammatory used to relieve osteoarthritis pain and found to cause heart failure, could have endangered VIOXX consumers. A Merck drug, VIOXX has since been taken off the market.

The suit seeks to stop the practice and gain restitution of money Albertsons has made from the practice, which, according to the suit, is $3-$4.50 per flyer and $12-$15 per phone call, which translates into millions of dollars in profit, Krinsk said.

Albertsons spokesperson Karen Ramos said in a statement emailed to the Gay & Lesbian Times that the chain does not sell private consumer information and never has.

“We consider the allegations in this complaint to be false and totally without merit – and we will vigorously defend ourselves against them,” the statement read.

Ramos was unable to comment further on the case to the Gay & Lesbian Times as of press time.

“They’re evading the issue,” Givens said about the statement. “Their response is a non-response.”

“Albertsons always circulates a generalized denial, but refuses to make specific representations that would be helpful to a consumer attempting to determine whether or not there is any validity to the complaint,” Krinsk said. “And that’s just the way companies caught with their pants down normally react.”

Albertsons, which has over 2,500 stores across the nation, is not the only pharmacy chain using the marketing scheme, Krinsk said. They are looking into expanding the suit to include other stores such as Longs, Walgreens and Wal-Mart. A similar lawsuit against a prominent East Coast drug store chain recently reached a settlement.

Many pharmacists who work in these pharmacies aren’t aware the practice is occurring, Krinsk added.

Passed by California voters Nov. 2, Proposition 64 seeks to limit Private Enforcement of Unfair Business Competition laws to only the California attorney general and local government prosecutors to sue on behalf of the general public or enforce unfair business competition laws, and that only those who have been directly injured by unfair business practices can sue. Albertsons has already made a motion to dismiss the case based on the recent legislation, asserting that PRC is no longer a viable plaintiff. The motion will most likely not stand based on the fact that Finkelstein & Krinsk do have one plaintiff in the case besides PRC. Additionally, Givens said, PRC is assuming the law will not apply retroactively.

“Even if for some reason Prop 64 was retroactive and therefore Privacy Rights Clearinghouse was not allowed to proceed, we could still proceed with our other plaintiff,” Krinsk said.

Akin Gump Strauss Hauer & Feld, LLP is representing Albertsons in the suit, which could take years to resolve.