Shook Public Policy Co-Chair Mark Behrens has partnered with Ashley Garry of Eli Lilly and Co.'s Litigation and Legal Compliance Department to explore how advertisements placed by plaintiff's attorneys targeting pharmaceutical drugs and medical devices can encourage patients using those products to discontinue them, leading to adverse reactions—even death.

"Lawsuit advertisements that target prescription drugs and medical devices contain sensationalized information about the risks associated with those products," Behrens and Garry explain. "The advertisements often begin by flashing words like 'medical alert' or 'health alert.' The ads then attempt to bolster their credibility by incorporating images of government agency logos such as the [U.S. Food and Drug Administration] logo. Because the ads look legitimate, consumers may believe they are watching a public service announcement or receiving sound advice from a medical professional. What viewers are actually watching is fearmongering by plaintiff attorneys seeking to convince them to file lawsuits."

The authors detail legislation in Tennessee and Texas that regulates deceptive practices common in mass tort advertising, including provisions requiring notification that the advertisement is for legal services and the prohibition of terms such as "medical alert," "health alert" or "public service announcement." Further, ads may not include "recall" if a product has not been recalled, and governmental agency logos may not be displayed to imply an affiliation with the agency. One important distinction, Behrens and Garry note, is that the Tennessee law applies to all advertisements, while the Texas law applies only to television ads.

"Tennessee and Texas are the first states to prohibit common misleading practices in lawsuit advertisements," the authors conclude. "Other states should follow."

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