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Bill targets ‘attention-grabbing’ solicitation ads

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Sen. Clay Yarborough

Sen. Clay Yarborough

A measure to regulate certain legal advertisements soliciting clients for personal injury lawsuits against drug manufacturers unanimously cleared the Senate Judiciary Committee March 29.

Sen. Clay Yarborough, R-Jacksonville, called SB 1246 a consumer protection bill that will inject “truth in advertising” in ads concerning prescription drugs or medical devices that often result in uninformed people, particularly the elderly, altering their medical care without consulting their doctors.

“Many of you have probably been watching TV . . . and see the words ‘medical alert’ or ‘public announcement’ pop up on the screen that usually gets all our attention,” said Yarborough, noting many also are accompanied by government-looking logos. “These attention-grabbing advertisements then proceed to explain that a certain drug . . . can be dangerous and outlines the catastrophic side effects that can take place if these drugs are ingested. A lot of times the ads close with some form of  ‘You may be entitled to compensation.’”

Yarborough said these ads are not true medical alerts, but are solicitation for legal services, typically from out-of-state, non-attorney referral services.

SB 1246 would require that advertisements for legal services that are not approved by The Florida Bar and which contain information about a drugs or devises refrain from using misleading terms like “medical alert” and the inclusion of government logos, Yarborough said. The bill also requires a disclosure that states the ad is a paid advertisement for legal services and that patients should consult their physicians before making any changes to their medications.

Dr. Dakota Lane, an emergency medicine specialist in Gainesville representing Florida College of Emergency Physicians, testified in support of the bill. Lane said she has seen first-hand patients come into her emergency department for preventable conditions as a result of people stopping medications not because their doctors told them to but because they “were instructed to by an ad.”

“And seeing those words ‘medical alert’ on an advertisement, that’s a scary thing,” said Dr. Lane, adding the bill’s passage will save lives and prevent hospitalizations.

Rachael Gilmer of Levin Papantonio Rafferty in Pensacola said the pharmaceutical companies are seeking to prevent attorney advertising and other advocates from educating the public about harmful prescription drugs and medical devices.

“It is essential for consumers to be informed about the risks associated with some of the pharmaceutical products and medical devices,” Gilmer said. “Often this information and education comes only from these advertisements.”

She said “rarely or ever” do the pharmaceutical companies issue public service announcements after they see multiple adverse events with their products.

“Instead, if anything, the products are quietly pulled from the market with little to no announcement to the consumers,” Gilmer said. “The attorney ads, on the other hand, bring awareness to the potential issues and help start the conversation between a patient and a doctor.”

The Florida Justice Association opposes the legislation saying it would restrict First Amendment rights for commercial free speech. FJA’s Bill Cotterell also said many provisions in the bill are already prohibited by Florida Bar rules, including providing deceptive or misleading information.

But Sen. Yarbrough reiterated the bill does not prohibit advertising, it only prescribes what needs to be done when advertising.

Specifically, the bill provides that a person or an entity that issues an advertisement for legal services may not:

  • Present the advertisement as a medical alert, health alert, drug alert, or public service announcement or use any substantially similar phrase that suggests to a reasonable consumer that the advertisement is offering professional or medical advice, or advice from a state or federal governmental entity or an entity approved by or affiliated with a state or federal governmental entity.
  • Display the logo of a state or federal governmental entity in a manner that suggests to a reasonable consumer that the advertisement is presented by a state or federal governmental entity or by an entity approved by or affiliated with a state or federal governmental entity.
  • Use the term “recall” when referring to a product that has not been recalled in accordance with applicable state or federal regulations.

The bill provides that a person or an entity that issues an advertisement for legal services to solicit clients who may allege injury from a prescription drug or medical device approved by the FDA must include all of the following in the advertisement:

  • The statement, “This is a paid advertisement for legal services,” which must appear at the beginning of the advertisement.
  • The identity of the sponsor of the advertisement.
  • Either the identity of the attorney or the law firm that will be primarily responsible for providing the solicited legal services to a consumer who engages the attorney or law firm in response to the advertisement or an explanation of how a responding consumer’s case will be referred to an attorney or a law firm if the sponsor of the advertisement is not licensed to practice law.
  • A statement that a prescription drug or medical device approved by the FDA remains approved unless it has been recalled in accordance with the applicable state or federal regulations.
  • The statement, “Consult your physician before making any decision regarding prescribed medication or medical treatment.”

“And lastly, because the statute will not prohibit the dissemination of a legal advertisement that has been reviewed and approved by an ethics or disciplinary committee of The Florida Bar, and will not limit or otherwise affect the authority of the Bar to regulate the practice of law, enforce its rules of professional conduct, or discipline any person admitted to practice law, the bill appears to be consistent with Art. 2 §3 of The Florida Constitution.

“We are not prohibiting advertisement we just saying we need truth in advertising,” he said.

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