A television ad announces, “this is a Medical Alert.” As the FDA logo is displayed on the screen, a dire voice, suitable for a horror movie trailer, gets viewers’ attention, telling them a medication they are taking causes a lengthy list of serious health conditions and death. “Call, right now!” The problem is that this ad is not a public service advertisement sponsored by a government agency or health organization. It is a disguised ad for legal services.
Each year, non-attorney marketing companies and law firms that specialize in generating leads for lawsuits spend hundreds of millions of dollars on ads like this that air in Louisiana and nationwide. They take the health information of those who call into the “help line” and sell it to others for potential lawsuits.
By their very nature, these ads target the vulnerable, people who are sick and often elderly. Even if you have 20-20 vision, the blurry small print that flashes at the end of the ad, which may indicate that it is an advertisement for legal services and the identity of the sponsor, often cannot be read.
Viewers of these ads are led to believe that a medication is a “bad drug,” even if a doctor prescribed it as vital to a patient’s health and even his or her life. Language may suggest that the drug has been recalled, when it remains approved by the FDA.
The goal of these ads—which also appear on websites, in social media, and on the radio—is not to protect public health. It is to generate as many lawsuits as possible as quickly as possible to pressure a company into a large settlement. The ads often describe rare risks that have already been weighed by the FDA, considered by doctors, and shared with patients, or are based on a dubious study, the mere initiation of an investigation, or junk science.
These ads are not only misleading, they cause real harm. FDA researchers have found that lawsuit ads of this kind targeting blood thinning drugs led patients to stop taking their medication. As a result, scores of patients suffered serious injuries such as strokes and, as the lawsuit ads often say, “even death.”
Lawsuit ads that use deceptive tactics have also led patients to stop taking medications prescribed to help depression and other mental health conditions and discouraged individuals from seeking other forms of medical care that could benefit them. Recently, for example, a court admonished a law firm for airing deceptive lawsuit ads that could discourage individuals from benefiting from a drug that reduces the risk of HIV transmission.
Recognizing the significant public health risk, the Federal Trade Commission has reminded attorneys and lead generators that “ads for services or products can’t be unfair or deceptive.” “Attorney advertising,” the FTC observed, “is no exception.”
A bill on its way to Governor John Bel Edwards responds to these deceptive practices.
Senate Bill 43 is narrowly tailored to specifically address several of the common false and misleading practices that, if used to advertise any other product or service, would certainly be attacked by consumer advocates. The bill, which passed with overwhelming bipartisan support, should be signed into law.
Ads for lawsuits would no longer be presented as medical or health alerts, which they are not, but as paid advertisements for legal services. Misused official government agency logos would be gone from ads. Ads would not suggest a medication has been recalled when the FDA continues to consider it safe and effective. Unreadable small print text would be replaced with audible and clear information. Viewers of the ads would be cautioned to consult their physician before making decisions regarding prescribed medication or medical treatment, a requirement supported by the American Medical Association as misleading practices have become “even more pervasive” in recent years.
The bill also protects the private health information of Louisianans by ensuring that it is not collected, then sold or shared with others without their consent.
Those who violate the act would be subject to the state’s Unfair Trade Practices and Consumer Protection Law, the same law that prohibits unfair or deceptive practices when marketing other products and services.
Courts and the state bar association cannot effectively respond to these misleading practices for two simple reasons. First, those who are scared away from taking a medication or seeking treatment as a result of a misleading ad are highly unlikely to file a complaint with a bar association. Second, in many instances, the deceptive ads are sponsored by lead generating companies over which the bar has no control.
Some may also suggest that these misleading practices should be excused because attorney ads inform the public of their legal rights. But that goal can and should be achieved without fearmongering and deception, which has the very real side effect of causing harm.
Governor Edwards should sign the legislation into law.
Cary Silverman is a partner in the firm Shook, Hardy & Bacon LLP. He has closely studied lawsuit advertising practices and his practice includes consumer protection regulation and litigation.