“We now reverse the district court and uphold West Virginia’s law. This statute lies right at the heart of West Virginia’s police power. If West Virginia has one premier duty, it is to safeguard the health and safety of its citizens. And while the State certainly may not abridge basic constitutional protections in exercising that police power, the Supreme Court has long made clear that the regulation of commercial speech invokes lessened First Amendment concerns. In this area, we accord the State some, though not infinite, leeway in balancing the important state interests against the individual rights involved.”
“The district court did not afford the State that leeway. It applied strict scrutiny to the statute’s prohibitions, even though regulations of commercial speech have long received intermediate scrutiny. And while the district court correctly noted that an even more deferential standard applies to the statute’s disclosure requirements, it gave the State little deference when it applied that standard. Applying the correct standards with appropriate deference, we hold that the statute does not violate the First Amendment, and that the case must therefore be dismissed.”
Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act
In March 2020, West Virginia passed the Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act. W. Va. Code §§ 47-28-1 et seq. The Act is designed to regulate legal advertisements, i.e. the ads that attorneys use to solicit plaintiffs in litigation stemming from the use of medications or medical devices. It serves to ensure that such advertisements do not mislead or confuse the public.
The statute applies to advertisements that constitute “a solicitation for legal services regarding the use of medications through television, radio, newspaper or other periodical, outdoor display, or other written, electronic, or recorded communications wherein the advertisement solicits clients or potential clients for legal services.” Id. § 47-28-2(1). The statute regulates such advertisements in two ways: by prohibiting certain terms or images that may mislead the public, and by requiring certain disclosures to prevent confusion and protect public health.
The Act’s prohibitions target attorney advertisements that give the false impression that they reflect medical or governmental advice. So the statute prohibits attorneys from “[p]resent[ing]” an advertisement as a “consumer medical alert,” “health alert,” “consumer alert,” or “public service health announcement” so as to suggest “to a reasonable recipient that the advertisement is offering professional, medical, or government agency advice about pharmaceuticals or medical devices rather than legal services.” Id. § 47-28-3(a)(2). Similarly, an advertisement may not display “the logo of a federal or state government agency in a manner that suggests affiliation with the sponsorship of that agency.” Id. § 47-28-3(a)(3). And a third prohibition operates to make sure that attorney advertisements do not provide misleading information about the status of medications by preventing advertisements from using “the word ‘recall’ when referring to a product that has not been recalled by a government agency or through an agreement between a manufacturer and government agency.” Id. § 47-28-3(a)(4).
The Act’s disclosure requirements likewise aim to prevent attorney advertisements from confusing or misleading the audience. Several disclosure requirements, which the plaintiffs did not challenge, serve to make clear that attorney advertisements are just that—attorney advertisements. For instance, advertisements must state that they are “a paid advertisement for legal services,” must identify their sponsor, and must indicate the identity of the attorney or law firm that would represent clients. Id. § 47-28-3(a)(1), (5), (6).
Two other disclosure requirements, which plaintiffs did challenge, ensure that attorney advertisements do not give patients the mistaken impression that they should suddenly stop using prescription drugs or medical devices. These requirements apply only to advertisements made “in connection with a prescription drug or medical device approved by the U.S. Food and Drug Administration.” Id. § 47-28-3(b)(1), (b)(2). 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.” Id. § 47-28-3(b)(1). 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. § 47-28-3(b)(2).
Any person who “willfully and knowingly” violates the Act is deemed to have engaged in an unfair or deceptive act or practice in violation of the West Virginia Consumer Credit and Protection Act. Id. § 47-28-3(d).
The Federal Appellate Court held: “Plaintiffs try to transfigure the Act into a sweeping and draconian enactment. 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. We thus reverse the judgment of the district court and remand the case with directions that it be dismissed.”
Source Recht v. Morrisey, No. 21-1684.
If you or a loved one have suffered serious harm as a result of medical negligence in West Virginia or in another U.S. state, you should promptly find a West Virginia medical malpractice attorney, or a medical malpractice attorney in your state, who may investigate your medical malpractice claim for you and represent you or your loved one in a medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice lawyers in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.