---
kind: "section"
citation: "42 U.S.C. § 17936"
title: "42"
title_heading: "The Public Health and Welfare"
number: "17936"
heading: "Conditions on certain contacts as part of health care operations"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/42/17936"
units:
  - "Chapter 156 — Health Information Technology"
  - "Subchapter III — Privacy"
  - "Part A — Improved Privacy Provisions and Security Provisions"
---

# §17936. Conditions on certain contacts as part of health care operations

- (a) **Marketing—**
  - (1) **In general—** A communication by a [covered entity](/usc/42/17921.md?p=3) or [business associate](/usc/42/17921.md?p=2) that is about a product or service and that encourages recipients of the communication to purchase or use the product or service shall not be considered a [health care operation](/usc/42/17921.md?p=6) for purposes of subpart E of part [164](/usc/45/164.md) of title 45, Code of Federal Regulations, unless the communication is made as described in subparagraph (i), (ii), or (iii) of paragraph (1) of the definition of marketing in section 164.501 of such title.
  - (2) **Payment for certain communications—** A communication by a [covered entity](/usc/42/17921.md?p=3) or [business associate](/usc/42/17921.md?p=2) that is described in subparagraph (i), (ii), or (iii) of paragraph (1) of the definition of marketing in section 164.501 of title 45, Code of Federal Regulations, shall not be considered a [health care operation](/usc/42/17921.md?p=6) for purposes of subpart E of part [164](/usc/45/164.md) of title 45, Code of Federal Regulations if the [covered entity](/usc/42/17921.md?p=3) receives or has received direct or indirect [payment](/usc/42/17921.md?p=10) in exchange for making such communication, except where—
    - (A)
      - (i) such communication describes only a [drug](/usc/42/11851.md?p=4) or biologic that is currently being prescribed for the recipient of the communication; and
      - (ii) any [payment](/usc/42/17921.md?p=10) received by such [covered entity](/usc/42/17921.md?p=3) in exchange for making a communication described in [clause (i)](#a-2-A-i) is reasonable in amount;
    - (B) each of the following conditions apply—
      - (i) the communication is made by the [covered entity](/usc/42/17921.md?p=3); and
      - (ii) the [covered entity](/usc/42/17921.md?p=3) making such communication obtains from the recipient of the communication, in accordance with section 164.508 of title 45, Code of Federal Regulations, a valid authorization (as described in [paragraph (b)](#b) of such section) with respect to such communication; or
    - (C) each of the following conditions apply—
      - (i) the communication is made by a [business associate](/usc/42/17921.md?p=2) on behalf of the [covered entity](/usc/42/17921.md?p=3); and
      - (ii) the communication is consistent with the written contract (or other written arrangement described in section 164.502(e)(2) of such title) between such [business associate](/usc/42/17921.md?p=2) and [covered entity](/usc/42/17921.md?p=3).
  - (3) **Reasonable in amount defined—** For purposes of [paragraph (2)](#a-2), the term “reasonable in amount” shall have the meaning given such term by the [Secretary](/usc/42/17921.md?p=13) by regulation.
  - (4) **Direct or indirect payment—** For purposes of [paragraph (2)](#a-2), the term “direct or indirect [payment](/usc/42/17921.md?p=10)” shall not include any [payment](/usc/42/17921.md?p=10) for [treatment](/usc/42/17921.md?p=16) (as defined in section 164.501 of title 45, Code of Federal Regulations) of an individual.
- (b) **Opportunity to opt out of fundraising—** The [Secretary](/usc/42/17921.md?p=13) shall by rule provide that any written fundraising communication that is a healthcare operation as defined under section 164.501 of title 45, Code of Federal Regulations, shall, in a clear and conspicuous manner, provide an opportunity for the recipient of the communications to elect not to receive any further such communication. When an individual elects not to receive any further such communication, such election shall be treated as a revocation of authorization under section 164.508 of title 45, Code of Federal Regulations.
- (c) **Effective date—** This section shall apply to written communications occurring on or after the effective date specified under section 13423.[^1]

## Footnotes

[^1]: See References in Text note below.

## Source credit

(Pub. L. 111–5, div. A, title XIII, § 13406, Feb. 17, 2009, 123 Stat. 268.)

## Notes

### Editorial Notes

### References in Text

Section 13423, referred to in subsec. (c), means section 13423 of div. A of Pub. L. 111–5, which is set out as an Effective Date note under section 17931 of this title.

### Statutory Notes and Related Subsidiaries

### Effective Date

Section effective 12 months after Feb. 17, 2009, except as otherwise specifically provided, see section 13423 of Pub. L. 111–5, set out as a note under section 17931 of this title.