While advertisements by plaintiffs’ attorneys are considered commercial speech, and protected under the First Amendment as such, Justice Blackmun noted in the seminal Bates vs. State Bar of Arizona Supreme Court decision that attorney “[a]dvertising that is false, deceptive, or misleading, of course, is subject to restraint.” ILR’s trial lawyer advertising program is focused on addressing and curbing this type of false, deceptive, and misleading advertising through a multipronged approach that implements safeguards to prevent consumers and patients from being harmed in the name of trial lawyers making a profit.
This problematic practice is used in multiple types of litigation, including asbestos, employment, and general product liability. But the practice is acutely prevalent, and particularly dangerous, in the prescription drug and medical device lawsuit space. Pharmaceutical and medical device lawsuit ads often incorporate targeted messaging and use visual imagery that falsely (albeit tacitly) imply that they are affiliated with medical groups or government agencies. Some of the TV ads and websites dedicated to spurring lawsuits overstate the potential for complications or imply that products approved by the FDA as safe and effective have been recalled. There is even suggestion that some attorney advertisements are strategically aired in areas with ongoing litigation—unnecessarily scaring patients and the public—to influence jury pools. The ads are often sponsored by aggregator firms (law firms that rarely, if ever, litigate the potential cases they gather, but refer those who call to others) and “lead generation” companies that are not even law firms.
The public health implications of these false and misleading ads cannot be understated. The Food & Drug Administration (FDA) has identified 61 incidences of patients stopping or reducing their prescribed blood thinners after viewing lawsuit advertisements, some of which characterized the medication as a “bad drug.” These reports, filed by concerned doctors, included six deaths and a range of adverse events, the most common of which was a stroke. Medical literature and surveys of physicians and patients confirm that lawsuit ads have made misleading or unsupported claims about a wide range of other drugs, such as those that treat depression and mental illnesses.
All indications point towards this problem getting even worse in the coming years. Recent ILR research revealed that the number of television commercials seeking clients for lawsuits has more than tripled over the past decade. That same research estimated that law firms and others sponsoring the advertisements spent nearly $1 billion running these advertisements in 2017—116% more than they did in 2006, even as inflation remained under two percent.
Despite a calculated and aggressive campaign by the trial bar to demonize certain prescription drugs and simultaneously accrue large numbers of clients to bring mass tort actions, these advertisements are subject to little scrutiny by state bar associations or government agencies. Conversely, the FDA closely monitors prescription drug advertising, viewing it as important to ensure that manufacturer advertisements do not overstate the effectiveness of a drug or understate its risks. The FDA does not, however, monitor information disseminated in lawsuit advertisements that overstates the risks of drugs or that understates (or does not recognize at all) its benefits.
Recognizing that “fearmongering” lawsuit ads are “dangerous to the public at-large,” the American Medical Association (AMA) has recommended that the ads warn patients to consult with their physician before discontinuing a prescribed medication. The issue has gained the attention of Congressional leaders, who convened a hearing in 2017 at which doctors conveyed how misleading lawsuit ads have had tragic results for their patients.
Further oversight is needed to ensure that lawyer profit does not come before public health. Federal agencies responsible for protecting consumers, such as the FDA and the Federal Trade Commission (FTC), can curb this wave of false and misleading lawsuit advertising that is harming, and in some instances, killing patients. State legislators, attorneys general, and consumer agencies can also act to stop common misleading practices. While state bar associations have so far done little to address this burgeoning problem, they too should step up to ensure that the marketing done by their members is not false, misleading, and dangerous.