By: Alison Frankel
Advertising by personal injury lawyers – or by legal marketing firms working on their behalf – is a perennial grievance of the tort reform crowd. This week, the American Tort Reform Association issued a report claiming that trial lawyers and legal marketing firms trolling for mass torts clients spent about $186 million on broadcast ads just in the second quarter of 2018. Since much of the advertising targets pharmaceutical products with allegedly dire side effects, you frequently hear groups sympathetic to the pharmaceutical industry argue that trial lawyer ads cost lives: Patients see lawyers’ ads, stop taking their medications and, according to tort reform assertions, suffer the consequences.
There’s scant unbiased evidence of this phenomenon, as I told you in a column last year about a House Judiciary Committee hearing on trial lawyer advertising. The one study that claimed to have found actual patients stopped taking medication – the blood thinner Xarelto – in response to trial lawyer ads was sponsored by Janssen Pharmaceuticals, which makes Xarelto.
But a new paper co-authored by University of Oregon law professor Elizabeth Tippett, a key witness at last year’s congressional hearing, offers some empirical evidence that drug injury ads by trial lawyers and legal marketing firms do, in fact, mislead some consumers. And when those ads are deceptively framed as health warnings, Tippett and her co-author found, patients are less likely to refill or renew prescriptions.
“This finding is concerning because it suggests that after viewing drug injury advertisements that appear to be public health warnings consumers may decide to avoid taking the featured medication,” the paper said. “Deceptive drug injury advertisements are likely to be misidentified and serve to increase the perceived risks associated with the medications they feature.”
Tippett and co-author Jesse King of Weber State University conducted two studies, the results of which were posted to the Yale Journal of Health Policy, Law, and Ethics. In one, they sought to distinguish the impact of forthright and “deceptive” ads by showing about 370 consumers two actual ads about the reflux drug Reglan. One of the ads purported to be a public service warning about the drug’s side effects. The other was a more transparent pitch for prospective plaintiffs to contact a law firm. Some consumers were instructed the ads were pro-consumer. Others were told ad sponsors had a profit motive. The study found that uninformed consumers were more likely than those who received the profit-motive instruction to say they would not refill a prescription for the drug.
“Providing information about the purpose of these advertisements was found to increase the likelihood that participants would seek additional information about the medication and to reduce the perceived likelihood of experiencing the primary side effect discussed in the advertisements,” the paper said. “Both of these effects are encouraging.”
In the second study, the researchers wanted to test the corrective impact of pharmaceutical ads on consumers who have seen drug injury ads from trial lawyers and marketing firms. The experiment, which involved ads for the antidepressant Paxil, showed once again that consumers who view ads framed as public health warnings are likely to perceive greater risk from the targeted drug. The corrective pharma company ad did somewhat reduce the impact of the deceptive ad, the study found.
The big takeaway from the two experiments, according to the paper, is that consumers can be tricked by drug injury ads that look like health warnings. “Ad content can have a marked difference in how consumers process the persuasive content of messages and ultimately on their behavioral intentions,” the professors said.
They recommended stepped-up enforcement to mitigate the impact of the deceptive ads. The sort of disclaimer the American Medical Association has called for, the professors said, might help, but their studies found that even a prominent disclaimer “did not mitigate the influence of the deceptive ad on behavioral intentions towards filling a prescription.” Instead, the professors suggested that state bar associations get more aggressive about policing deceptive injury ads from lawyers. Historically, there’s no disciplinary precedent on deceptive ads, the paper said, in part because neither competitors nor consumers have brought complaints. (Competitors don’t want to put a crimp in their own advertising and deceived consumers typically don’t pay close attention to ad sponsors.) But state bars, they said, could “take the initiative to identify the worst offenders and take action against them.”
Even the threat of bar discipline, they acknowledged, wouldn’t stop deceptive ads by legal marketers that don’t practice law. Thorough regulation of deceptive drug injury ads, the professors said, would require help from the Federal Trade Commission, which has power over companies beyond the reach of state bar disciplinary committees.
The profs’ final word: The debate over drug injury advertising needs more study and more facts. Amen to that.