State law restricting attorneys' drug ads revived by 4th Circuit - Reuters.com
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(Reuters) - A federal appeals court has revived a West Virginia law aimed at preventing lawyers from presenting misleading information about prescription drugs and medical devices in advertisements.
A 4th U.S. Circuit Court of Appeals panel ruled Wednesday that the law, which forbids certain language in advertisements and requires specific disclosures, did not run afoul of the 1st Amendment of the U.S. Constitution, reversing a lower court judge.
West Virginia Attorney General Patrick Morrisey said in a statement that he was pleased with the ruling.
"The opinion is a radical reinterpretation of commercial-speech doctrine that warrants further review, which we will seek," said Robert Peck of the Center for Constitutional Litigation, who represents the plaintiffs, two personal injury lawyers and a client of one of the lawyers.
The disputed law prohibits lawyers from using certain phrases in advertisements soliciting clients, including "consumer alert" or "health alert," and limits the use of the term "recall" to when a product has actually been recalled by order of a government agency or through an agreement between the manufacturer and the government. It requires ads to disclose if a product remains approved by the Food and Drug Administration, and to advise patients not to stop taking medication without consulting their doctors.
Texas and Tennessee have adopted similar laws, which have not been challenged. The states have said that a surge in attorney TV ads seeking clients to sue over drug complications is scaring some consumers into not taking their medications.
The plaintiffs argued that the law violated their 1st Amendment rights by compelling them to make certain statements and forbidding them from using certain words in factually accurate ads.
U.S. District Judge John Preston Bailey in the Northern District of West Virginia in 2020 agreed, striking down the law. However, Circuit Judge J. Harvie Wilkinson wrote for the panel on Wednesday that lawyer advertisements were commercial speech that could be regulated by states to protect consumers.
"This statute lies right at the heart of West Virginia's police power," he wrote. "If West Virginia has one premier duty, it is to safeguard the health and safety of its citizens."
The kinds of ads the law restricts, the judge said, "might give medically unsophisticated viewers the impression that attorneys are disinterestedly dispensing medical or governmental advice instead of actively soliciting clients."
Wilkinson was joined by Circuit Judge Albert Diaz and Senior Circuit Judge Henry Floyd.
The case is Recht v. Morrisey, 4th U.S. Circuit Court of Appeals, No. 21-1684.
For the plaintiffs: Robert Peck of the Center for Constitutional Litigation
For the state: West Virginia Solicitor General Lindsay See
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Brendan Pierson reports on product liability litigation and on all areas of health care law. He can be reached at [email protected].
source: https://www.reuters.com/legal/litigation/state-law-restricting-attorneys-drug-ads-revived-by-4th-circuit-2022-04-27/
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