Wednesday, April 27, 2022

Lawyer Medical Advice In Ads Subject To Reasonable Restrictions

West Virginia's disclosure requirements in advertising for clients in medical device cases passes Constitutional muster as a regulation of commercial speech per a decision of the United States Court of Appeals for the Fourth Circuit

West Virginia by statute regulates legal advertisements that solicit clients in litigation involving medications or medical devices. The plaintiffs in this case, two West Virginia attorneys and a client, contend that the statute violates the First Amendment by prohibiting attorneys from using certain terms or images in their advertisements and by requiring such advertisements to include certain disclosures. The district court agreed, granting summary judgment to the plaintiffs.

The regulation

In March 2020, West Virginia passed the Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act. See W. Va. Code §§ 47-28-1 et seq. The Act is designed to regulate legal advertisements, i.e. the ads that attorneys use to solicit plaintiffs in litigation stemming from the use of medications or medical devices. It serves to ensure that such advertisements do not mislead or confuse the public.

The statute applies to advertisements that constitute “a solicitation for legal services regarding the use of medications through television, radio, newspaper or other periodical, outdoor display, or other written, electronic, or recorded communications wherein the advertisement solicits clients or potential clients for legal services.” Id. § 47-28-2(1). The statute regulates such advertisements in two ways: by prohibiting certain terms or images that may mislead the public, and by requiring certain disclosures to prevent confusion and protect public health.

The Act’s prohibitions target attorney advertisements that give the false impression that they reflect medical or governmental advice. So the statute prohibits attorneys from “[p]resent[ing]” an advertisement as a “consumer medical alert,” “health alert,” “consumer alert,” or “public service health announcement” so as to suggest “to a reasonable recipient that the advertisement is offering professional, medical, or government agency advice about pharmaceuticals or medical devices rather than legal services.” Id. § 47-28-3(a)(2). Similarly, an advertisement may not display “the logo of a federal or state government agency in a manner that suggests affiliation with the sponsorship of that agency.” Id. § 47- 28-3(a)(3). And a third prohibition operates to make sure that attorney advertisements do not provide misleading information about the status of medications by preventing advertisements from using “the word ‘recall’ when referring to a product that has not been recalled by a government agency or through an agreement between a manufacturer and government agency.” Id. § 47-28-3(a)(4).

District court reversed here

The disclosure requirements here pose no such issue. In response to concrete concerns supported by empirical evidence, West Virginia imposes relatively benign burdens on attorneys. First, the Act mandates commonplace disclosures clarifying the nature and identity of the advertisements at issue, requirements that plaintiffs do not specifically challenge. And second, the Act requires two or three short sentences informing patients that they should not discontinue a drug without consulting a doctor, that discontinuing a drug may be hazardous, and, if applicable, that the drug remains FDA approved. This limited intrusion into a given advertisement is entirely commonplace. Rare is the radio listener or television viewer who has not sat through far more voluminous warnings and disclosures than those mandated here.

In short, we conclude that the disclosure requirements at issue here are subject to Zauderer and that they easily pass the deferential standard articulated by that case. We therefore reverse the district court’s holding that these requirements violate the First Amendment.

Plaintiffs try to transfigure the Act into a sweeping and draconian enactment. But all West Virginia requires is that attorneys truthfully present themselves as attorneys. The Act’s prohibitions and disclosures work together to accomplish this end—and to protect the health of West Virginia citizens who may be misled into thinking that attorneys are reliable sources of medical advice. The Act survives constitutional challenge. We thus reverse the judgment of the district court and remand the case with directions that it be dismissed.

(Mike Frisch)

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