First Amendment

4th Circuit upholds restrictions on lawyer ads seeking drug and device clients

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A federal appeals court has upheld West Virginia’s restrictions on lawyer advertising that seeks clients for litigation involving medication and medical devices.

The 4th U.S. Circuit Court of Appeals at Richmond, Virginia, said the disclosure regulations impose “relatively benign burdens on attorneys” that do not violate their First Amendment right to free speech.

Similarly, prohibitions banning certain terms and images are constitutional because they target misleading speech related to West Virginia’s “substantial interests in protecting public health and in preventing deception,” the appeals court said.

Reuters and Bloomberg Law have coverage. The Legal Profession Blog has highlights from the April 27 opinion, written by Judge J. Harvie Wilkinson III.

The West Virginia law helps ensure that the lawyer ads don’t confuse or mislead the public, the 4th Circuit said. The law:

• Doesn’t allow ads to be presented as a “consumer medical alert,” “health alert,” “consumer alert” or “public service health announcement.”

• Says ads can’t use “the logo of a federal or state government agency in a manner that suggests affiliation with the sponsorship of that agency.”

• Bans ads from using the word “recall” when the product has not been recalled.

• Mandates disclosures about the nature and the identity of the ads.

• Requires ads to inform patients that they should not discontinue a drug without consulting a doctor, that discontinuing a drug may be hazardous, and, if applicable, that the drug remains approved by the Food and Drug Administration.

The appeals court reversed a district court decision striking down the requirements.

The 4th Circuit said the ads should be examined using intermediate scrutiny, rather than the more onerous strict scrutiny standard used by the federal district court when evaluating prohibitions in the statute. While the district court acknowledged that a more deferential standard applies to disclosure requirements, the lower court “gave the state little deference when it applied that standard,” the appeals court said.

“Plaintiffs try to transfigure the act into a sweeping and draconian enactment,” the 4th Circuit said. “But all West Virginia requires is that attorneys truthfully present themselves as attorneys. The act’s prohibitions and disclosures work together to accomplish this end—and to protect the health of West Virginia citizens who may be misled into thinking that attorneys are reliable sources of medical advice. The act survives constitutional challenge.”

Robert S. Peck of the Center for Constitutional Litigation represents the plaintiffs—two West Virginia personal injury lawyers and a client of one of the lawyers.

“The opinion is a radical reinterpretation of commercial-speech doctrine that warrants further review, which we will seek,” Peck told Reuters.

The case is Recht v. Morrisey.

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