Limits on Attorney Advertising in Drug, Device Cases Halted

West Virginia may not enforce a law restricting advertising by lawyers seeking clients who allegedly have been injured by drugs or medical devices, a federal court in the state said.

Attorney advertising is First Amendment-protected speech, the restrictions are content-based, and the state hasn’t demonstrated that this is the least restrictive way to regulate the advertising, the U.S. District Court for the Northern District of West Virginia said June 26.

The law thus appears to violate the First Amendment, the court said. It granted the lawyers’ motion for a preliminary injunction, blocking the state from enforcing the law during the course of the lawsuit.

The law regulates television, radio, newspaper, periodical, outdoor display, and other electronic or written advertisements for legal services soliciting people who may have been injured by drugs or medical devices.

It prohibits the use of the word “recall,” except when a recall has been issued by the federal government or agreed upon by the government and the manufacturer; prohibits the use of phrases like “consumer medical alert,” “health alert,” “consumer alert,” and “public service health announcement"; and prohibits the display of state or federal agency logos.

The law also requires lawyers to say the communication is a paid legal advertisement, include the sponsor’s name, identify the lawyer or law firm by name, include a phrase telling potential clients to consult a doctor before discontinuing prescribed medication, and state that the product remains approved by the federal Food and Drug Administration.

West Virginia’s attorney general can sue a lawyer for noncompliance under the state’s Consumer Credit and Protection Act.

The state didn’t demonstrate that the law is narrowly tailored to serve a compelling state interest or that there isn’t a less restrictive alternative that would serve that interest, the court said.

Judge John Preston Bailey wrote the opinion.

The Segal Law Firm and the Center for Constitutional Litigation PC represent the attorney. The West Virginia Attorney General’s Office represents the state.

The case is Recht v. Justice, N.D. W.Va., No. 20-cv-90, 6/26/20.