United States: Federal Oversight For Plaintiff Lawyer Advertising

Last Updated: October 7 2019
Article by Eric Alexander

We write mostly about decisions in cases, with those mostly coming from judges. Occasionally, we will also comment on articles, amicus briefs, and official government pronouncements. We cannot remember the last time we explored a press release. In today's political environment, speculation about what is contained in documents that purportedly exist but we cannot see can be time-consuming and often pointless endeavor. We will try to be brief and pointed in our discussion about an FTC press release that addresses something that can keep us busy and keep our clients up at night: plaintiff lawyer advertising. The other day, the FTC announced that it had sent out "letters to seven legal practitioners and lead generators expressing concerns that some television advertisements that solicit clients for personal injury lawsuits against drug manufacturers may be deceptive or unfair under the FTC Act," but it was not making the letters public or saying to whom they were sent. Beyond how "lead generators" was just thrown out there like a legitimate business, why does this matter?

The short answer is that this might be another step towards curtailing some of the problematic behavior, at least from the defense perspective, that drives serial product liability and mass tort litigation. After railing for some time about practices by the plaintiff lawyers and their fellow travelers in terms of contingency fees and litigation funding, we have seen federal indictments of various players in these scheme and court rulings undercutting them (like here and here). It has been an open secret for years that the spending on legal advertising is also often funded by third-parties and part of a "Field of Dreams" like model of "if you build (the advertising campaign), they will come (to give you enough plaintiffs to make it worth your while)." If you start with the assumption that the plaintiff lawyers, "lead generators," and funders all want to make money, then legal advertising can add pressure in multiple ways. In addition to gathering up potential clients, including those will different injuries or products over which to sue, the ads can impact the perception of potential jurors, judges, investors, patients, prescribers, etc., on the product(s) at issue. In this sense, misleading ads can be highly effective ads. The historical problems with trying to get rid of misleading lawyer ads—even without the recent expansion into things like digital advertising, paying to alter search results, and creative ways to avoid gag orders through local pre-trial advertising—are that lawyer advertising has been the province of state law and state bars and that the First Amendment protection of commercial speech—so hotly debated over the years in the context of off-label promotion of prescription drugs, for instance—does apply to lawyer advertising. The ABA presents a good discussion of these subjects here and here.

As the advertising spend has increased, the methods have gotten more sophisticated, and the stakes have gotten higher, it does seem that the advertising has gotten more aggressive both in tone and in tendency to stray from the truth. This is not just our assessment. We previously posted on a law professor's article that systematically analyzed the ads encouraging people to sue over drugs. The ads were not only misleading, but they influenced some patients to disregard the medical advice they had received. (We recall almost losing it when someone we know, otherwise fairly sensible, advised that he planned to discontinue a prescription medication for a chronic medical condition based on a lawyer ad's statement about a particular study. The study, which only purported to show a very small absolute risk of a disease that occurs anyway, had already been debunked by the time we had this discussion.) This is actually a pretty scary concept. It is one thing to encourage someone to sue over a complication experienced with a drug in the past (that had not made that someone sue before); it is another thing to make some stop taking a drug that their doctor recommended and was doing what it was supposed to without any problems. And this seems to be what caught FTC's attention.

The press release notes:

The letters state that some lawsuit ads may misrepresent the risks associated with certain pharmaceuticals and could leave consumers with the false impression that their physician-prescribed medication has been recalled. According to the letters, some of the lawsuit ads may make deceptive or unsubstantiated claims about the risks of taking blood thinners and drugs for diabetes, acid reflux, and high blood pressure, among other conditions. The letters explain that advertisers must have competent and reliable scientific evidence to substantiate their claims about these purported risks.

The letters note that the FDA's Adverse Event Reporting System contains reports of consumers who saw lawsuit ads about the prescription drugs they were taking, discontinued those medications, and suffered adverse consequences as a result. The letters say that lawsuit ads that cause, or are likely to cause, viewers to discontinue their medications might constitute an unfair act or practice. To prevent consumer injury, the letters suggest that lawsuit ads may need to include clear and prominent audio and visual disclosures stating that consumers should not stop taking their medications without first consulting their doctors.

The suggested disclaimer on consulting with physicians before discontinuing medication would be something we have never seen in these lawyer ads. Including such a disclaimer would undercut the shock value of the ad. Similarly, the press release states:

The letters also highlight lawsuit ads that open with sensational warnings or alerts, which may initially mislead consumers into thinking they are watching a government-sanctioned medical alert or public service announcement. The letters remind the recipients that advertisements promoting goods or services should be identifiable as advertising from the beginning.

Again, making it clear that the ad comes from someone who wants to make money suing and not from the government or a neutral party would limit the impact on the same part of the brain targeted by the plaintiff lawyers at trial.

While the press release says the recipients of the letters were advised to make sure "their advertising is not unfair or deceptive" or there may "follow-up action as warranted" in the future, there is not much indication as to whether this will be an area for broad enforcement going forward. The FTC's website does, however, include two contemporaneous blogs to aid either "consumers" or "businesses." The consumer one emphasizes the concern about patients changing their own care without consulting doctors and offers even stronger language about the plaintiff lawyer ads than the press release:

You see the ads on TV, hear them on the radio, or read them in print and online: attorneys telling you about the dangers of certain prescription drugs. Many of these ads open with "medical alert," "health alert" or "consumer alert" to get your attention. The ads generally say that if you or a loved one has been injured by a certain prescription medication, you may be entitled to compensation, and to contact the law firm for more information.

The FTC, the nation's consumer protection agency, says that if you're thinking about stopping your prescription medications for any reason, talk with your doctor first.

Some attorney ads may overstate the risks of the drugs they talk about. But even when they don't, the benefits of the drugs at issue may outweigh the risks. In fact, the FTC is aware of reports of serious and tragic consequences — including death — that happened when people stopped taking their medications without first talking with their health care professionals.

Just because a lawyer talks about the dangers of a drug doesn't mean you should stop taking it. In fact, it might be more dangerous if you stop taking it. Check with your doctor before you stop taking any prescription medication.

Included is a link to a more general FDA recommendation that patients take the drugs they are prescribed.

The blog for businesses may be for the ones doing the advertising to tell them how to avoid breaking the law or it may be for the ones whose products are being discussed to determine when a lawyer ad may go too far. This part stands out to us:

Ads should be clear from the start that they're ads. Some of the ads in question begin with wording and graphics that could leave consumers with the misimpression that they're watching a public service alert or an FDA safety warning. FTC cases clearly establish that ads and promotional messages should be identifiable as advertising from the very beginning. The FTC's Enforcement Policy Statement on Deceptively Formatted Advertisements offers practical guidance on keeping ad formats non-deceptive. And if you refer in your ads to actions taken by government health agencies, make sure what you convey to consumers expressly or by implication is accurate.

Be careful about the impact of scare tactics. It's a fact-specific analysis, but an ad that highlights a medicine's risk and leads consumers to discontinue their medication could constitute an unfair act or practice. The wiser course of action is to clearly disclose that people shouldn't stop taking medicines until they've talked it over with their doctor. Some of the ads in question included that information in fine-print footnotes – a no-go under FTC law. Given the significant risks of discontinuing prescription drugs without medical consultation, a disclosure to that effect should be easy to spot, should use simple unambiguous language, and should be made both audibly and visually.

Health claims must be backed by sound science. Even if you're not advertising a health product, the bedrock advertising principle that health-related claims must be supported by sound science remains unchanged. This means that any claims about the risks or dangers of a drug or device must be supported by competent and reliable scientific evidence.

Lawyer ads about drugs and devices without scare tactics and "sound science" to back up "health-related claims" would have to look pretty different than most of the stuff in current rotation on TV. The referenced FTC Enforcement Policy has many of the principles already discussed here, but we will highlight two more that seem to apply to the internet advertising in particular. First, ads should not masquerade as actual news. Those ads are out there, offered up under the names of sponsors and authors that might easily pass for legitimate without some digging. Second, it needs to be "fully disclosed. . . . clearly and conspicuously" when what appear to be "user-generated social media, personal blogs, online comment forums, or television talk show interviews" are actually paid advertisements. Among other things, there are many online "victim forums" that seem to be used to route potential drug and device plaintiffs to lawyers.

While it remains to be seen where FTC enforcement will go—and how the plaintiff lawyers and "lead generators" will adapt—it does seem that shedding some light on these practices might be a step toward making litigation be more about testing the merits than testing the defendant's capacity for withstanding pressure.

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

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions