United States: Both Sides Equal Under The First Amendment

Last Updated: July 7 2017
Article by James Beck

There's a problem with attorney advertising in the prescription medical product space – but it's not the one you normally hear us defense-side litigators kvetching about. Quite apart from its litigation-generating effects, attorney advertising can have adverse public health consequences when all the anti-pharma hyperbole causes patients to cease taking targeted products in violation of their physicians' orders. That problem is worse with some products than with others. Currently, plaintiff-side lawyers and their litigation funder enablers have decided to target virtually all modern anticoagulant drugs (e.g., Effient, Eliquis, Plavix, Pradaxa, Xarelto) because they can cause (surprise) severe bleeding. That's a big problem because abruptly stopping those medications can very easily be fatal. Nor is it the only example. Halting, say, an anti-diabetes medication can lead to serious complications, although one would hope not in such a dramatic fashion as a stroke.

Congress held hearings on patient injuries caused by attorney advertising last month. Here's a link to the testimony of the witnesses. Two doctors testified about the impact of sensationalistic lawyer advertising on their patients, including patients who had died after being induced to stop taking their medicine by all the bombast. A law professor testified about a law review article that discussed the difficulties of bar associations regulating such advertising, when it is often carried out by non-lawyers whose physical locations (lawyers are regulated on a state-by-state basis) are unclear. A lawyer also testified, who raised First Amendment objections essentially to any regulation of attorney advertising – even when limited to issues affecting the public health.

We want to address that last point.

To the attorney advertisers, we say "welcome to the club." Our medical device and pharmaceutical clients, when they engage in advertising – including direct-to-consumer advertising – are engaged in the same type of speech as our adversaries, at least from a First Amendment perspective. It's all commercial speech. We've written lots of blogposts on commercial speech, most being variations on the theme that the FDA can't ban truthful commercial speech. We readily extend the same consideration to our opponents. The government can't ban truthful attorney advertising either.

That said, the First Amendment isn't an obstacle to the kind of regulation that was considered at the recent hearing. Disclaimers? Those are child's play, constitutionally. Judicial opinions recommend them frequently, when they hold disclaimers to be an alternative to advertising bans of various types (not just involving drugs). E.g., ECM BioFilms, Inc. v. FTC, 851 F.3d 599, 617 (6th Cir. 2017) ("the Commission was not required to adopt the least restrictive disclaimer"); Pearson v. Shalala, 164 F.3d 650, 659 (D.C. Cir. 1999) ("we suspect that a clarifying disclaimer could be added to the effect that 'The evidence in support of this claim is inconclusive.'"); American Home Products Corp. v. FTC, 695 F.2d 681, 696-702 (3d Cir. 1982) (agency may order advertiser making unsubstantiated scientific claim to include a disclaimer to that effect). Indeed, as to attorney advertising itself, the Supreme Court pointed out:

[Attorney's] constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception.

Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985) (citation and quotation marks omitted). The proposal during the hearings that attorney advertisements, at least those concerning certain products, be required to state, with equal emphasis, that under no circumstances should anyone stop their treatment without first consulting their doctor, is 100% constitutional.

Indeed, if anything, that proposal is constitutionally conservative. Attorney advertisers targeting prescription medical products are simply the flip side of prescription medical product manufacturers in this regard. Anything the FDA can require our clients to do, it could, constitutionally at least – require attorney advertisers to do – if it had the regulatory authority. Theoretically, Congress could confer on the FDA the power to regulate all advertising concerning FDA-regulated products, not just that originating with the entities that the FDA now regulates. We don't advocate doing this, because we think that the FDA has more important work to do than evaluate attorney advertising. Nor are we wild about giving an FDA imprimatur to whatever attorney advertisements that could survive the agency's standards. But from a constitutional perspective the FDA could undertake such regulation. Since commercial speech is commercial speech, the FDA (or some other regulatory body) could impose on lawyer advertising the same standards for balance and scientific support that our clients' advertising, both DTC and otherwise, must already meet. Moreover, an agency could make the attorney advertisers pay for the review process, just as our clients do, through user fees.

The bottom line is this: Lawyer advertising holds no preferred position among types of commercial speech. Indeed, there are no "types" of commercial speech – it's all the same constitutionally. So when attorneys on the other side advocate bans on truthful manufacturer speech, because supposedly even truthful off-label information is a threat to the public health, they should remember that the same thing can be said about truthful attorney advertising.

We're quite willing to apply the same standards to both sides. Truthful commercial speech about prescription medical products (or anything else) cannot be banned, but that doesn't prohibit the FDA (or some other entity) from exercising the power at least to review it first. As far as disclaimers, look no further than 21 C.F.R. §101.93(c)(2). Every lawyer advertisement about FDA-regulated products could quite constitutionally be required to state, "These statements have not been evaluated by the Food and Drug Administration."

This article is presented for informational purposes only and is not intended to constitute legal advice.

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