Both Sides Equal Under The First Amendment

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...