RICHMOND – The Fourth Circuit Court of Appeals has reversed a federal court decision, ruling West Virginia’s law regulating legal advertisements for medications and medical devices is constitutional.
The Fourth Circuit ruling was issued April 27. The court remanded the case back to District Court for the Northern District of West Virginia with instructions to dismiss the case entirely.
“I am pleased with the Circuit Court’s decision upholding West Virginia law,” West Virginia Attorney General Patrick Morrisey said in a press release. “One function of the Attorney General’s Office is to enforce the state’s consumer protection laws, like this statute.
Morrisey
“It is designed to prevent misleading or confusing ads in order to safeguard the health and safety of the citizens of West Virginia. As the order states, ‘all West Virginia requires is that attorneys truthfully present themselves as attorneys.’”
Scott Segal, one of the attorneys representing the plaintiffs in the case, declined comment on the Fourth Circuit ruling. Steve New, one of the attorney plaintiffs in the case, also declined comment.
The state statute at issue is called the “Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act, and it regulates legal ads soliciting new clients to medications or medical devices. It became law in 2020.
Morrisey’s office says the statute prohibits certain terms or images that may mislead the public and requires certain disclosures to prevent confusion and protect public health. The plaintiffs contended it violated the First Amendment.
District Judge John Preston Bailey agreed and enjoined the statute in May 2021, prohibiting the state from enforcing the law. Morrisey then appealed the case to the Fourth Circuit. It was argued March 10. Circuit Judge J. Harvie Wilkinson III wrote the Fourth Circuit ruling, in which Circuit Judge Albert Diaz and Senior Circuit Judge Henry F. Floyd joined.
“The act’s prohibitions and disclosures work together to accomplish this end — and to protect the health of West Virginia citizens who may be misled into thinking that attorneys are reliable sources of medical advice,” the Fourth Circuit ruling states.
“This statute lies right at the heart of West Virginia’s police power. If West Virginia has one premier duty, it is to safeguard the health and safety of its citizens. And while the state certainly may not abridge basic constitutional protections in exercising that police power, the Supreme Court has long made clear that the regulation of commercial speech invokes lessened First Amendment concerns.
“In this area, we accord the state some, though not infinite, leeway in balancing the important state interests against the individual rights involved. …
“And while the district court correctly noted that an even more deferential standard applies to the statute’s disclosure requirements, it gave the state little deference when it applied that standard. Applying the correct standards with appropriate deference, we hold that the statute does not violate the First Amendment, and that the case must therefore be dismissed.”
In May 2020, two attorneys – Stephen P. New and Steven M. Recht -- and one of their clients sued Gov. Jim Justice and Attorney General Patrick Morrisey over the law that was then yet to go into effect. The plaintiffs alleged the law violates the First Amendment and 14th Amendment. Justice later was removed as a defendant.
“Lawyer advertising is protected speech,” Bailey wrote in his 2021 order. “The act burdens protected speech. The act implicates the First Amendment.”
In his order, Bailey also said the restrictions provided by the act are content-based and speaker-based, which he says implicates strict scrutiny.
“While the state may impose reasonable restrictions to speech, in order to do so, the state must demonstrate a compelling state interest,” Bailey wrote. “The state has failed to demonstrate a compelling state interest to support the validity of the Act. … The state has failed to demonstrate a substantial government interest sufficient to permit the infringement on the First Amendment.”
"The problem with these ads is that the over-the-top, doomsday ads claiming lethal effects of medications can scare consumers to the point that they might stop using critical, prescribed medications without consulting their health care providers,"
Bailey Aragon, the public affairs manager for the American Tort Reform Association, noted a 2019 FDA study that found 66 reports of adverse events following patients discontinuing their blood thinner medication (Pradaxa, Xarelto, Eliquis or Savaysa) after viewing a lawyer advertisement. The median patient age was 70, and 98 percent stopped medication use without consulting with their doctor. Thirty-three patients experienced a stroke, 24 experienced another serious injury, and seven people died.
The plaintiffs claimed the act would prohibit any legal advertisement that fails to identify itself as a paid advertisement, the sponsor of the advertisement, the lawyer or firm that will represent clients. It also prohibits ads billed as a "consumer medical alert," "health alert," "consumer alert," "public service health announcement," or "substantially similar phrase, the suit says.
They say the act violated the First Amendment by imposing prohibitions and requiring disclosures that are unrelated to any state interest in preventing consumer deception and by censoring truthful representations.
The plaintiffs claim, for example, the act prohibited the use of the term recall "when referring to a product that has not been recalled by a government agency or through an agreement between a manufacturer and government agency," when the vast majority of recalls occur without a government agency order or an agreement between the agency and the manufacturer.
Even the federal Food and Drug Administration defines recalls as voluntary actions taken by companies at any time to remove defective drug products from the market, according to the complaint.
They say the act also violated the 14th Amendment because it treats certain speakers differently than others without substantial justification, the complaint states.
Alesha Bailey, the non-lawyer plaintiff who was represented by New and Recht, claimed that by restricting and burdening legal advertising in West Virginia, the act infringed on her First Amendment right to receive truthful, non-misleading information about drugs and medical devices that have harmed people and might lead to litigation.
New and Recht claim the act infringed on their right to communicate truthful information about prescription drugs and medical devices that have harmed people. They claim they want to continue to use legal advertising to inform clients in need of legal representation as a result of harms suffered from prescription drugs or medical devices.
The plaintiffs are being represented by Segal and Robin Jean Davis of The Segal Law Firm in Charleston as well as Robert S. Peck of the Center for Constitutional Litigation.
Fourth Circuit case number 21-1684 (U.S. District Court for the Northern District of West Virginia case number: 5:20-cv-00090)
