Senate considering bill to add restrictions on legal advertising
By: John Breslin
AB 3217, which passed the Assembly 71-0, with seven non-votes, aims to curb the excesses of legal advertising by forcing attorneys to include notices that prescription drugs and medical devices can also be beneficial.
Physicians are backing the bill, which was amended, somewhat weakened, say supporters, as it made its way through the Assembly.It was read for the first time in the Senate May 17.
The bill states that an advertisement may be considered materially misleading if it understates the benefits of Federal Drug Administration-approved medications or medical devices, or overstates the risks.
Further, a commercial can be considered misleading if a material fact is omitted by the law firm.
It reads, “An advertisement may be considered materially misleading if it materially understates the benefits of a drug or device, or materially overstates the risk associated with the drug or device.” It is at second reading in the Senate.
Nationally, advertising by lawyers making claims about prescription drugs and medical devices are in the top two for spending.
Of nearly $1 billion spent on legal advertising each year, around $100 million goes toward commercials about prescription drugs and medical devices, according to a widely cited report by the U.S.Chamber of Commerce’s Institute for Legal Reform.
Theodore M. Mazer, president of the California Medical Association, said he and his organization support the bill on the grounds of patient safety.
The fear, which has circulated for some time, is that some patients may be so scared by the advertisements that they stop taking their medication, Dr. Mazer told the Northern California Record.
“They are selecting bad things without mentioning all the benefits,” said Mazer. “This is potentially harming people, modern day ambulance chasing.”
It is, and has been, an issue for doctors, and the advertising has gone too far, he added.
Mazer said he was disappointed at an amendment that removed the requirement that any legal advertisement include a warning that consumers should consult with their doctor before ceasing taking medication.
“But attorney firms have been put on notice that there will be consequences if these advertisements are not open, honest, and complete,” Mazer said.
“This is a liability issue for doctors if patients discontinue treatment; the lawyer is not liable.”
According to the FDA, ads for lawsuits involving prescription drugs have caused patients to stop taking their medications which has resulted in at least six deaths and more than 50 serious medical events, including strokes and blood clots. These statistics are for blood thinner drugs only.
The FDA states that as of the end of 2016, it had received 61 “adverse event reports,” in which a patient or multiple patients taking blood thinners had seen lawsuit ads naming Pradaxa, Xarelto or an ad using the term “bad drug.”
Supporters of the bill, including the Civil Justice Association of California (CJAC), welcomed its passage through the Assembly.
CJAC President John Doherty had described unfettered legal advertising as akin to the “wild west.”
“We have $1 billion worth of trial attorney advertising a year,” Doherty previously told the Northern California Record, “and this is not a situation where consumers are looking for attorneys, it is attorneys looking for clients.”
He added, “It is like the wild west, and they can make almost any claim.”
Echoing the concerns raised by the CMA, Doherty said the danger is that consumers, or patients, will watch these commercials and stop taking their medications or using medical devices.
The National Trial Lawyers Association also cited the Institute for Legal Reform when it issued its conclustion that legal television advertising nationally has boomed in recent years, rising by 68 per cent in the eight years to 2016. It has doubled its share of the local spot television market during the same period, the NTLA stated.
The association pointed out that a number of law firms spend more than $10 million a year. Three, Akins Mears, Morgan and Morgan, and Pulaski & Middleman spent approximately $25 million.
“My hope is that the bill will lead those putting forth these advertisements to more carefully consider how they characterize both the upside and downside of drugs and medical devices,” sponsor Assemblymember Marc Berman, the sponsor of the bill, said prior to it passing the Assembly.