We write mostly about decisions in cases, with those mostly coming from judges. Occasionally, we will also comment on articles, amicus briefs, and official government pronouncements. We cannot remember the last time we explored a press release. In today’s political environment, speculation about what is contained in documents that purportedly exist but we cannot see can be time-consuming and often pointless endeavor. We will try to be brief and pointed in our discussion about an FTC press release that addresses something that can keep us busy and keep our clients up at night: plaintiff lawyer advertising. The other day, the FTC announced that it had sent out “letters to seven legal practitioners and lead generators expressing concerns that some television advertisements that solicit clients for personal injury lawsuits against drug manufacturers may be deceptive or unfair under the FTC Act,” but it was not making the letters public or saying to whom they were sent. Beyond how “lead generators” was just thrown out there like a legitimate business, why does this matter?
The short answer is that this might be another step towards curtailing some of the problematic behavior, at least from the defense perspective, that drives serial product liability and mass tort litigation. After railing for some time about practices by the plaintiff lawyers and their fellow travelers in terms of contingency fees and litigation funding, we have seen federal indictments of various players in these scheme and court rulings undercutting them (like here and here). It has been an open secret for years that the spending on legal advertising is also often funded by third-parties and part of a “Field of Dreams” like model of “if you build (the advertising campaign), they will come (to give you enough plaintiffs to make it worth your while).” If you start with the assumption that the plaintiff lawyers, “lead generators,” and funders all want to make money, then legal advertising can add pressure in multiple ways. In addition to gathering up potential clients, including those will different injuries or products over which to sue, the ads can impact the perception of potential jurors, judges, investors, patients, prescribers, etc., on the product(s) at issue. In this sense, misleading ads can be highly effective ads. The historical problems with trying to get rid of misleading lawyer ads—even without the recent expansion into things like digital advertising, paying to alter search results, and creative ways to avoid gag orders through local pre-trial advertising—are that lawyer advertising has been the province of state law and state bars and that the First Amendment protection of commercial speech—so hotly debated over the years in the context of off-label promotion of prescription drugs, for instance—does apply to lawyer advertising. The ABA presents a good discussion of these subjects here and here.
As the advertising spend has increased, the methods have gotten more sophisticated, and the stakes have gotten higher, it does seem that the advertising has gotten more aggressive both in tone and in tendency to stray from the truth. This is not just our assessment. We previously posted on a law professor’s article that systematically analyzed the ads encouraging people to sue over drugs. The ads were not only misleading, but they influenced some patients to disregard the medical advice they had received. (We recall almost losing it when someone we know, otherwise fairly sensible, advised that he planned to discontinue a prescription medication for a chronic medical condition based on a lawyer ad’s statement about a particular study. The study, which only purported to show a very small absolute risk of a disease that occurs anyway, had already been debunked by the time we had this discussion.) This is actually a pretty scary concept. It is one thing to encourage someone to sue over a complication experienced with a drug in the past (that had not made that someone sue before); it is another thing to make some stop taking a drug that their doctor recommended and was doing what it was supposed to without any problems. And this seems to be what caught FTC’s attention.
The press release notes:
The letters state that some lawsuit ads may misrepresent the risks associated with certain pharmaceuticals and could leave consumers with the false impression that their physician-prescribed medication has been recalled. According to the letters, some of the lawsuit ads may make deceptive or unsubstantiated claims about the risks of taking blood thinners and drugs for diabetes, acid reflux, and high blood pressure, among other conditions. The letters explain that advertisers must have competent and reliable scientific evidence to substantiate their claims about these purported risks.
The letters note that the FDA’s Adverse Event Reporting System contains reports of consumers who saw lawsuit ads about the prescription drugs they were taking, discontinued those medications, and suffered adverse consequences as a result. The letters say that lawsuit ads that cause, or are likely to cause, viewers to discontinue their medications might constitute an unfair act or practice. To prevent consumer injury, the letters suggest that lawsuit ads may need to include clear and prominent audio and visual disclosures stating that consumers should not stop taking their medications without first consulting their doctors.
The suggested disclaimer on consulting with physicians before discontinuing medication would be something we have never seen in these lawyer ads. Including such a disclaimer would undercut the shock value of the ad. Similarly, the press release states:
The letters also highlight lawsuit ads that open with sensational warnings or alerts, which may initially mislead consumers into thinking they are watching a government-sanctioned medical alert or public service announcement. The letters remind the recipients that advertisements promoting goods or services should be identifiable as advertising from the beginning.
Again, making it clear that the ad comes from someone who wants to make money suing and not from the government or a neutral party would limit the impact on the same part of the brain targeted by the plaintiff lawyers at trial.
While the press release says the recipients of the letters were advised to make sure “their advertising is not unfair or deceptive” or there may “follow-up action as warranted” in the future, there is not much indication as to whether this will be an area for broad enforcement going forward. The FTC’s website does, however, include two contemporaneous blogs to aid either “consumers” or “businesses.” The consumer one emphasizes the concern about patients changing their own care without consulting doctors and offers even stronger language about the plaintiff lawyer ads than the press release:
You see the ads on TV, hear them on the radio, or read them in print and online: attorneys telling you about the dangers of certain prescription drugs. Many of these ads open with “medical alert,” “health alert” or “consumer alert” to get your attention. The ads generally say that if you or a loved one has been injured by a certain prescription medication, you may be entitled to compensation, and to contact the law firm for more information.
The FTC, the nation’s consumer protection agency, says that if you’re thinking about stopping your prescription medications for any reason, talk with your doctor first.
Some attorney ads may overstate the risks of the drugs they talk about. But even when they don’t, the benefits of the drugs at issue may outweigh the risks. In fact, the FTC is aware of reports of serious and tragic consequences — including death — that happened when people stopped taking their medications without first talking with their health care professionals.
Just because a lawyer talks about the dangers of a drug doesn’t mean you should stop taking it. In fact, it might be more dangerous if you stop taking it. Check with your doctor before you stop taking any prescription medication.
Included is a link to a more general FDA recommendation that patients take the drugs they are prescribed.
The blog for businesses may be for the ones doing the advertising to tell them how to avoid breaking the law or it may be for the ones whose products are being discussed to determine when a lawyer ad may go too far. This part stands out to us:
Ads should be clear from the start that they’re ads. Some of the ads in question begin with wording and graphics that could leave consumers with the misimpression that they’re watching a public service alert or an FDA safety warning. FTC cases clearly establish that ads and promotional messages should be identifiable as advertising from the very beginning. The FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements offers practical guidance on keeping ad formats non-deceptive. And if you refer in your ads to actions taken by government health agencies, make sure what you convey to consumers expressly or by implication is accurate.
Be careful about the impact of scare tactics. It’s a fact-specific analysis, but an ad that highlights a medicine’s risk and leads consumers to discontinue their medication could constitute an unfair act or practice. The wiser course of action is to clearly disclose that people shouldn’t stop taking medicines until they’ve talked it over with their doctor. Some of the ads in question included that information in fine-print footnotes – a no-go under FTC law. Given the significant risks of discontinuing prescription drugs without medical consultation, a disclosure to that effect should be easy to spot, should use simple unambiguous language, and should be made both audibly and visually.
Health claims must be backed by sound science. Even if you’re not advertising a health product, the bedrock advertising principle that health-related claims must be supported by sound science remains unchanged. This means that any claims about the risks or dangers of a drug or device must be supported by competent and reliable scientific evidence.
Lawyer ads about drugs and devices without scare tactics and “sound science” to back up “health-related claims” would have to look pretty different than most of the stuff in current rotation on TV. The referenced FTC Enforcement Policy has many of the principles already discussed here, but we will highlight two more that seem to apply to the internet advertising in particular. First, ads should not masquerade as actual news. Those ads are out there, offered up under the names of sponsors and authors that might easily pass for legitimate without some digging. Second, it needs to be “fully disclosed. . . . clearly and conspicuously” when what appear to be “user-generated social media, personal blogs, online comment forums, or television talk show interviews” are actually paid advertisements. Among other things, there are many online “victim forums” that seem to be used to route potential drug and device plaintiffs to lawyers.
While it remains to be seen where FTC enforcement will go—and how the plaintiff lawyers and “lead generators” will adapt—it does seem that shedding some light on these practices might be a step toward making litigation be more about testing the merits than testing the defendant’s capacity for withstanding pressure.