In 2019, Texas and Tennessee passed first-of-its kind legislation in response to deceptive attorney advertising targeting prescription drugs and medical devices.
Other states and federal legislators must follow take action to pass similar laws and protect public safety, and prevent patients from being tricked by misleading ads.
States have begun to address the impacts of the deceptive attorney advertising to protect their constituents from unnecessary medical harm. We anticipate that additional states will address this issue in their upcoming legislative sessions, and when they do, they should not be alone.
Congress and the U.S. Food and Drug Administration must consider that these deceptive tort lawsuits put patient safety at risk and consider oversight that can help inform future state actions, as well as set a precedent for how future deceptive ads and tort lawsuits will be handled.
Critics have challenged that the law denies them their First Amendment rights and that the laws “unfairly singles out lawyers” and are “an unconstitutional restraint on commercial free speech.”
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.
Although the Supreme Court has recognized states cannot bar attorney ads, the Court has also made it clear that false, deceptive, or misleading advertising is subject to restraint. Further, the Court has upheld restrictions on attorney advertising that unduly influence injured people or mislead the public.
Tennessee
In April 2019, Tennessee became the first state in the nation to pass legislation in response to deceptive attorney advertising targeting prescription drugs and medical devices. The bill prohibits ads that display the logo of a government agency, use the word “recall” in relation to a product that has not been recalled, or fail to disclose that they are paid ads for legal services.
Texas
In June 2019, Texas passed legislation to combat mass tort litigation by prohibiting ads that display the logo of a government agency; use the word “recall” in relation to a product that has not been recalled; use certain phrases such as “medical alert,” “public service announcement,” or “drug alert;” or fail to disclose that they are paid ads for legal services.