Recently, in Recht vs. MorriseyThe Fourth Circuit has dismissed a First Amendment challenge to a West Virginia law that imposes restrictions on legal advertisements soliciting customers for lawsuits over the use of prescription drugs and medical devices.¹ We’ve all seen those commercials on TV – a lawyer announcing that a particular drug or medical device is potentially harmful and urging users of the product to join a lawsuit against the manufacturer. However, in recent years, increasing attention has been paid to the potential harm of advertisements themselves. In 2019, the Federal Trade Commission (FTC) sent letters to seven lawyers and lead generators expressing concern that these advertisements “may be misleading or unfair under FTC law.”² The FTC noted that the Food and Drug Administration (FDA) had received reports from “consumers who had seen legal advertisements for prescription drugs they were taking, discontinued those drugs, and suffered adverse consequences.”

In response to concerns about these advertisements, West Virginia passed legislation in 2020 – the Prevention of Deceptive Drug Advertising and Solicitation Practices Act (the “Act”) – prohibiting certain advertising practices legal and requiring disclosures and warnings for patient protection.³ The requirements of the law are intended to prevent these legal advertisements from being misrepresented as professional, medical or government agency advice regarding prescription drugs or medical devices. Among other requirements, the law states that these advertisements must specifically disclose that they are “paid advertisements”.[s] for legal services”, to identify the sponsor of the advertisement and the attorney or law firm that will represent clients, and to warn viewers against discontinuing the use of drugs or medical devices approved by the FDA without consulting their doctors.

Shortly after the law was passed, it was challenged by attorneys for two plaintiffs in court on First Amendment grounds. The District Court for the Northern District of West Virginia ruled for the plaintiffs and permanently enjoined and barred West Virginia from enforcing the law. On appeal, however, the Fourth Circuit reversed the district court’s decision.⁴ The technical legal question was whether the law fell within the authorized regulation of commercial speech. The Fourth Circuit’s opinion concludes that the law “survives constitutional challenge” and is intended to “protect the health of citizens of West Virginia who might be misled into thinking that attorneys are reliable sources of medical advice.” Although the plaintiffs have indicated that they intend to appeal the decision,⁵ with the law surviving this first “constitutional challenge,” we may see more efforts in other states to enact similar laws imposing restrictions on in-court advertisements involving drugs and medical devices.⁶

References

1 no. 21-1684, 2022 WL 1233240 (4th Cir. April 27, 2022).

2 Federal Trade Commission, FTC Flags Potentially Illegal TV Ads for Prescription Drug Lawsuits (September 24, 2019), https://www.ftc.gov/news-events/news/press-releases/2019/09/ftc-flags-potentially-unlawful-tv-ads-prescription-drug-lawsuits.

3 W. Will. Code §§ 47-28-1 and following.

4 Right2022 WL 1233240.

5 To see B. Pierson, State law restricting attorney drug ads revived by 4th Circuit, Reuters (April 27, 2022), https://www.Reuters.com/legal/litigation/state-law-restricting-attorneys-drug-ads-revived-by-4th-circuit-2022-04-27/ . Indeed, on May 10, 2022, the Plaintiffs filed a motion for rehearing bench urging the entire Fourth Circuit to rethink the panel’s decision. To see Attys Urge 4th Circ. To Review W.Va’s Law on Drug Case Announcements – Law360

6 Other states, including Tennessee and Texas, already have similar laws in place. See id.