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Restrictions on lawyer ads involving drugs and medical devices are not unconstitutional, says federal court

18 May 2022

The Fourth Circuit has found that a West Virginia state law restricting how attorneys can solicit clients in pharmaceutical and medical device cases does not violate the First Amendment. At the end of April, a three-judge panel reversed a lower court ruling that had handed summary judgment to two personal injury lawyers and their client in their suit that alleged the law was unconstitutional.

Recently, in Recht v. Morrisey, the Fourth Circuit rebuffed a First Amendment challenge to a West Virginia law that places restrictions on legal advertisements soliciting clients for lawsuits regarding the use of prescription drugs and medical devices.¹ We’ve all seen these advertisements on TV – a lawyer announces that a particular drug or medical device is potentially causing harm, and urges users of the product to join a lawsuit against the manufacturer. A growing focus in recent years, however, has been on the potential harm from the advertisements themselves. In 2019, the Federal Trade Commission (FTC) sent letters to seven legal practitioners and lead generators expressing concern that these advertisements “may be deceptive or unfair under the FTC Act.”² The FTC noted that the Food and Drug Administration (FDA) had received reports of “consumers who saw lawsuit ads about the prescription drugs they were taking, discontinued those medications, and suffered adverse consequences as a result.”

In response to concerns over these advertisements, West Virginia passed a law in 2020 – the Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act (the “Act”) – prohibiting certain legal advertising practices and requiring disclosures and warnings for the protection of patients.³ The requirements of the Act are intended to prevent these legal advertisements from being misrepresented as professional, medical, or government agency advice about prescription drugs or medical devices. Among other requirements, the Act states these advertisements must specifically disclose that they are “paid advertisement[s] for legal services,” to identify the sponsor of the advertisement and the attorney or law firm that will represent clients, and to warn viewers against discontinuing use of FDA-approved drugs or medical devices without consulting with their doctors.

Shortly after the Act was passed, it was challenged by two plaintiffs' attorneys in court on First Amendment grounds. The District Court for the Northern District of West Virginia held for the plaintiffs, and permanently enjoined and prohibited West Virginia from enforcing the Act. On appeal, however, the Fourth Circuit reversed the District Court’s decision.⁴ The technical legal issue was whether the Act was within the bounds of permissible regulation of commercial speech. The Fourth Circuit opinion concludes that the Act “survives constitutional challenge” and works to “protect the health of West Virginia citizens who may be misled into thinking that attorneys are reliable sources of medical advice.” Although the plaintiffs have indicated they intend to appeal the decision,⁵ with the Act having survived this initial “constitutional challenge,” we may see more efforts in other states to enact similar laws placing restrictions on lawsuit advertisements involving drugs and medical devices.⁶

Authored by Lauren Colton, Philip Katz, Bert Lao, and Julie Schindel.