California Legislature Refuses to Rein in Misleading Drug Lawsuit Ads

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July 12, 2018

California plaintiffs’ lawyers came out in force last week to stop a bill that would make deceptive drug lawsuit advertising by lawyers a violation of the state’s major consumer protection law. The bill was unanimously passed by the California Assembly in May, but a hearing scheduled before the state Senate Judiciary Committee for July 3 was abruptly cancelled after the politically-powerful group, Consumer Attorneys of California, voiced its opposition.

Forbes reported that the chair of the Committee, who cancelled the hearing, has received almost $55,000 in campaign contributions from the trial lawyer group.

Misleading lawsuit advertisements, run by plaintiffs’ lawyers and non-attorney advertising firms, cast a wide net for individuals to join lawsuits over FDA-approved prescription drugs. These ads, which often feature bombastic and deceptive language and imagery, are not only hurting consumers, they are having deadly affects.

A 2016 letter from the Food & Drug Administration (FDA) to a member of Congress said the agency had received 61 “serious adverse event reports” of patients who saw a drug lawsuit ad on television and were frightened into stopping their doctor-prescribed blood thinning medications. The reports included six deaths. One of those who died after stopping his medication was a 45-year old man, who then succumbed from a pulmonary embolism. Another was a woman who died of a stroke, after she stopped taking Xarelto, which had been prescribed by her doctor for stroke prevention.

In the case of misleading negative ads about Xarelto, the ads have generated more than 19,000 lawsuits. However, after three trials, juries have ruled each time that the blood thinner’s manufacturer adequately warned doctors of its risks and properly instructed them on its use.

Plaintiffs’ lawyers looking for big paydays argue that they should be able to say whatever they want on TV about FDA-approved drugs because pharmaceutical manufacturers spend a lot of money advertising those drugs. The major difference is that the FDA strictly regulates every word a pharmaceutical manufacturer can say about a drug in its television advertising and elsewhere.

A couple of years ago, the American Medical Association (AMA) passed a resolution calling these kinds of ads “fear mongering” and “dangerous” for patients. The AMA said the lawyer ads emphasize the side effects and ignore the life-saving benefits of FDA-approved drugs. They called on the government to require warnings on lawsuit commercials that tell patients not to stop any medication without first consulting their doctor.

The AARP noted in March 2018 through one of its Fraud Watch Network alerts that “[a] surge in television, radio and internet ads from law firms and lawsuit marketing companies is causing some patients to take serious risks,” and that “the rhetoric of these ads have frightened some patients into stopping critical life-saving medications without consulting a healthcare practitioner.”

In addition to national groups coming out on the issue of false and misleading lawsuit advertising, the California Medical Association backed the California bill that made “materially misleading” statements about drugs and medical devices a violation of the California Consumers Legal Remedies Act. A spokesman called it “sensible policy to make ads more fairly balanced and ensure patient safety.”

Hopefully the next time this bill makes its way through the California Legislature, lawmakers will do the right thing and rein in these misleading ads.