New State Laws Limit Deceptive Mass Tort Advertising Aimed at Drugs and Devices

In their article “Alert: Deceptive Plaintiff Lawyer Advertising is Harmful to Public Health . . . and States are Taking Action,” Shook Partner and Public Policy Group Co-Chair Mark Behrens and Ashley Garry, counsel for litigation and legal compliance at Eli Lilly and Company, examine new state laws intended to regulate plaintiff lawyer advertisements that target consumers of prescription drugs and medical devices. The article was published in the International Association of Defense Counsel (IADC) Joint Newsletter of the Civil Justice Response and Drug, Device and Biotechnology Committees, June 19, 2019.

According to the article, both Tennessee and Texas have passed groundbreaking legislation to regulate deceptive and misleading practices in mass tort advertising by plaintiffs’ lawyers. The laws will apply not only to prescription drugs and medical devices, but also any products regulated by government agencies, including consumer products and automobiles. Spending for television, radio and internet legal services advertising has grown faster than all other types of ad spending, and according to the American Bar Association, may now top $1 billion annually. 

The authors say that ads targeting prescription drugs compromise the doctor-patient relationship and potentially put consumers’ health at risk because they emphasize a drug’s side effects while failing to mention its benefits or whether it is still FDA-approved. And one in four people report they would stop taking a drug “immediately, without consulting a doctor, if they saw a lawsuit advertisement involving the drug.” Both new laws will include provisions that:

  • Ensure viewers understand they are seeing attorney advertising
  • Bar ads presented as “medical alerts,” “health alerts,” “public service announcements” or similar
  • Prohibit ads from using the term “recall” if the product has not been recalled by a government agency, and
  • Forbid the use of government agency logos that suggest an affiliation with the agency.
The Tennessee law, which applies to all advertising regardless of medium, also will require warnings not to stop taking a drug without consulting a physician. In addition, actions for violations of the law may be brought by the state attorney general or by individuals injured by deceptive or misleading content. The Texas law will apply only to television advertising, and provides no private right of action. 

The authors anticipate First Amendment challenges to the new laws, but note that the U.S. Supreme Court has upheld reasonable restrictions on attorney advertising with potentially false, deceptive or misleading content. They conclude, “Tennessee and Texas have simply mandated the minimum oversight necessary to protect the public. Their laws target specific misleading practices that would be illegal if used in advertisements associated with any other product or service . . . Other states should follow.”