West Virginia Lawyer Device, Drug Case Solicitation Law Upheld - Bloomberg Law
A West Virginia law that imposes requirements designed to prevent fraud in attorney advertisements seeking clients for cases involving drugs and medical devices is valid because it’s intended to prevent confusion and protect public health, the Fourth Circuit said Wednesday.
The Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act “lies right in the heart of West Virginia’s police power,” namely it’s “premier duty” to protect citizens’ health and safety, the U.S. Court of Appeals for the Fourth Circuit said.
The decision overturns a ruling by a federal district court that permanently blocked the state from enforcing the law after finding that it violates attorneys’ free speech rights under the U.S. Constitution’s First Amendment.
The lower court erroneously used a strict scrutiny standard when evaluating the law, rather than the more lenient intermediate scrutiny standard that applies to commercial speech, the Fourth Circuit said. The appeals court sent the case back to the lower court with instructions to dismiss it.
The law regulates legal advertisements soliciting clients for lawsuits against drug and device makers, the court said. It specifically prohibits advertisements giving the false impression that they are promoting government advice, the court said.
For example, the law prohibits using “consumer medical alert,” “health alert,” “consumer alert,” “public service health announcement,” or “recall” and the logos of state or federal government agencies, the court said. The law also requires attorneys to warn potential clients not to stop taking prescribed medication without a doctor’s advice and to disclose that the drug or device has been approved by the U.S. Food and Drug Administration, the court said.
Commercial speech is “expression related solely to the economic interests of the speaker and its audience,” the court said. It once was thought to fall completely outside the First Amendment, but the U.S. Supreme Court extended constitutional protection to advertising regulations imposed on licensing professionals in 1976.
The nation’s top court later said that the protection for commercial speech is limited in comparison to protection for core speech, the Fourth Circuit said. It thus can be regulated in ways that aren’t allowed for noncommercial speech, it said.
Applying an intermediate scrutiny test, the court said the law is constitutional. The law targets speech that’s inherently, if not actually, misleading, it said.
West Virginia’s interest in regulating the speech is substantial, the court also said. It protects public health by preventing potential “medical mishaps” and protects citizens from deception regarding medical issues, the court said.
And the law directly advances the state’s interests without broadly reaching what attorneys can say about their legal services, Judge J. Harvie Wilkinson III said.
Judges Albert Diaz and Henry F. Floyd joined.
The West Virginia Attorney General’s Office represents the state. Center for Constitutional Litigation PC represents the attorneys.
The case is Recht v. Morrisey, 4th Cir., No. 21-1684, 4/27/22.
source: https://news.bloomberglaw.com/us-law-week/west-virginia-lawyer-device-drug-case-solicitation-law-upheld
Your content is great. However, if any of the content contained herein violates any rights of yours, including those of copyright, please contact us immediately by e-mail at media[@]kissrpr.com.