We want to start by emphasizing the word restrictions. The law at issue in West Virginia was not a ban on plaintiff lawyer advertising, nor could it be. Since Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the First Amendment’s protection of truthful and non-misleading commercial speech extends to lawyers. Lawyers, like professionals offering other services, can advertise and such advertising can serve the legitimate purpose of helping an individual determine if they have a legal problem and are in need of a lawyer. That does not change the defense bar’s perspective that plaintiff lawyer advertising is fraught with problematic behavior that drives serial product liability and mass tort litigation. That’s especially true for drugs and medical devices. It is hard to ignore a television ad that sounds like a red flag warning about a medication you are currently taking. It’s harder still sometimes to differentiate between a lawyer ad and public service announcement. What the West Virginia law seeks to do is set a balance where advertising is permitted but with restrictions to curtail misleading advertising. A unanimous Fourth Circuit found that was a valid exercise of the state’s police power to safeguard health and safety of its citizens.
In Recht v. Morrissey, — F.4th –, 2022 WL 1233240 (4th Cir. Apr. 27, 2022), two plaintiff attorneys and one client challenged the constitutionality of West Virginia’s Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act. The Act places certain restrictions and requirements on ads soliciting plaintiffs for litigation involving drugs and medical devices. Id. at *1. The first part of the act is aimed prohibiting ads “that give the false impression that they reflect medical or governmental advice.” Id. The ads cannot contain include phrases such as “consumer medical alert,” “health alert,” “consumer alert,” or “public service health announcement.” Id. Nor can they include the logo of a federal or state government agency, so as not to suggest affiliation with any such agency. Finally, they cannot use the word “recall” except “when referring to a product that has been recalled by a government agency or through an agreement between a manufacturer and government agency.” Id. The second part of the Act is likewise geared toward preventing confusion or misleading the public but by requiring certain disclosures accompany all ads concerning drugs and devices approved by the FDA:
Such advertisements must include the warning: “Do not stop taking a prescribed medication without first consulting with your doctor. Discontinuing a prescribed medication without your doctor’s advice can result in injury or death.” They must also “disclose that the subject of the legal advertisement remains approved by the U.S. Food and Drug Administration, unless the product has been recalled or withdrawn.”
Id. at *2 (citations omitted).
The district court granted plaintiffs’ motion for summary judgment concluding that the act violated the First Amendment. It conducted its analysis using a strict scrutiny standard rather than the intermediate scrutiny standard announced in Central Hudson Gas & Elec. Corp. v. Public Service Comm’n, 447 U.S. 557 (1980), as the “governing framework for analyzing commercial speech restrictions.” Recht at *3. The district court’s rationale for using strict scrutiny rested primarily on Sorrell v. IMS Health Inc., 564 U.S. 552 (2011), believing that case stands for the proposition that content-based laws are subject to strict scrutiny. Recht at *4. We’ve had numerous occasions to discuss Sorrell over the years (starting here) and the Fourth Circuit is not the first appellate court to find that Central Hudson’s intermediate scrutiny standard withstands Sorrell (see here). Primarily because in Sorrell, the Court applied the Central Hudson standard just calling it “heightened” scrutiny instead of “intermediate” scrutiny. Therefore, “[i]t is difficult to imagine that the Supreme Court, in consciously relying on Central Hudson, was actually overruling it.” Recht at *4. Because the district court incorrectly applied strict scrutiny (“the most demanding test know to constitutional law”), the Fourth Circuit conducted a de novo review to determine if the Act withstood intermediate scrutiny. It did.
The first Central Hudson factor is whether the law regulates misleading speech because such speech can be banned completely. Id. at *5. The court had no problem concluding that the purpose of the Act was to target “inherently or actually misleading” speech:
The dangers in this area are clear. Drug-related lawyer advertisements might give medically unsophisticated viewers the impression that attorneys are disinterestedly dispensing medical or governmental advice instead of actively soliciting clients. And those viewers might in response undertake a rash course of action detrimental to their health and wellbeing by promptly dropping their medications. West Virginia has merely attempted to abate these dangers.
Id. at *6.
As evidence that the practice of “dressing up a legal advertisement as something it isn’t” is both real and actually misleading, the court relied on a press release by the FTC in 2019 which we discussed here. It appears plaintiffs did not fight aggressively over the provisions that prohibit calling an ad a “health alert” and such or using logos, but plaintiffs did pushback on the ban on the word “recall.” It is not a total ban, but the Act prohibits calling a voluntary recall a recall because sometimes “objectively truthful speech can still be misleading.” Id. at *7.
Precisely because the regulatory meaning of “recall” might not fully align with the ordinary meaning that a consumer would assign, West Virginia seeks to prevent the mistaken assumptions arising from this mismatch.
Id. Nor does the act prevent other ways to describe a drug or device’s status, such as voluntary withdrawal. Requiring the use of alternatives instead of a “loaded” word to avoid misleading the public is “eminently reasonable.” Id.
The second Central Hudson question is whether the government’s interest is “substantial.” Id. at *8. The court found West Virginia had two substantial interests – protecting public health and preventing deception. Either was sufficient to satisfy intermediate scrutiny. Id.
The final two prongs of the Central Hudson test are whether the Act “directly advances” the state’s substantial interest and “in a way that is not more extensive than necessary.” Id. In practice, this means that state must have some evidence that the harm to be addressed is real and not just conjectural and there is a “fit” between that harm and the means chosen to address it. Id. at *8-9. The regulations need not be the least restrictive but should be reasonable. Id. at *9. Here the court concluded the Act passed this test:
As previously noted, each prohibition targets particular misleading words or images in order to protect public health and prevent citizens from taking misguided medical actions based on attorney advice. . . . The Act does not strip attorneys of the ability to advertise. It does not presume to dictate what attorneys can say about their legal services, but instead reaches misleading statements about drugs or devices that might give rise to a lawsuit. It does not affect other industries or activities, but instead focuses on a particular problem. Really, the Act does not ask for much, but instead requires that attorneys present themselves truthfully as attorneys when they advertise.
Id. So far as the reasonableness of the Act[s regulations, the court noted that at least two other states have similar acts (Texas and Tennessee). Id. at *10. For all of these reasons the court concluded that the prohibitions on what a lawyer can include in an ad do not violate the First Amendment.
The court then turned to the disclosure requirements which are judged under the standard set out in Zauderer v. Off. of Disciplinary Counsel, 471 U.S. 626 (1985), which provides that requiring advertisers to included “purely factual and uncontroversial information” is allowed as long as the disclosure is “reasonably related to the State’s interest in preventing deception of consumers.” Recht at *10. The district court found the Act’s disclosure requirements were not sufficiently factual or uncontroversial to apply the reasonable relation test. The Fourth Circuit disagreed.
Starting with “don’t stop your medications without consulting your doctor” – it was undisputed that it is “well known, after all, that suddenly discontinuing certain medications can cause injury.” Id. at *11. The district court found the second half of the disclosure – consult your doctor – was more advice/opinion than fact. The Fourth Circuit found the lower court was working from a mistaken premise that an instruction cannot also be factual and uncontroversial:
Is there really any difference between a recipe that says, “Bake at 425 degrees for 35 minutes” and one that says, “The pie will be undercooked if you bake it for much less than 35 minutes and overcooked if you bake it for much longer”? Of course, instructions may turn out to be opinionated or non-factual on closer examination. But not always, and it is the communicative content of the message, rather than the format, that is dispositive. A sentence framed as “an instruction rather than a direct factual statement” may be factual and uncontroversial where it “clearly implies a factual statement” that is true.
Id. at *12. The second disclosure requirement was to state that the drug remains approved by the FDA if that is true. A statement the court found “entirely anodyne.” Id.
Finally, both types of disclosures are reasonably related to the state’s interest in preventing consumer deception. The district court focused on whether the mandatory disclosures were the “most appropriate remedy” in all circumstances. But that is not the court’s job. The West Virginia legislature came to the conclusion that these disclosures, on the whole, would best serve the interests of its citizens and as they are directly related to the state’s interest in preventing deception, the pass the reasonable relationship test. Plaintiffs’ arguments regarding burden were unjustified given the limited scope of the disclosures. Id. at *13.
The West Virginia Act is not “draconian.” West Virginia enacted a statute narrowly focused on prohibiting false and misleading advertising in an area prone to potential deception of unsophisticated consumers. In fact, these restrictions on lawyer advertising don’t come close to regulations that govern direct-to-consumer advertising by drug/device manufacturers. And ads that masquerade as “science”, “FDA safety warnings,” and “victim forums,” have the potential to do much more harm that a DTC add that at most could drive a consumer to talk to their doctor about a particular medication or treatment. Fortunately, upholding a law like West Virginia’s is a positive step in reeling in speech that is inherently and actually misleading.