Giving Personal Injury Attorneys Who Run Misleading Drug Ads a Dose of Their Own Medicine

Abstract

Like direct-to-consumer advertising of prescription drugs undertaken by pharmaceutical companies, client-seeking advertising sponsored by lawyers that highlights the dangers of such products may pose health risks to patients. Unlike the drug industry, whose advertising the federal government subjects to various restrictions, personal injury attorneys face essentially no oversight regarding campaigns that target therapeutic products. Lawyers enjoy no greater rights, however, when engaging in such commercial speech, so the U.S. Constitution would not stand in the way of crafting a sensible response. Nonetheless, because state bar authorities do not seem up to the task of doing so, and tort claims for either negligent misrepresentation or product disparagement would encounter serious obstacles as well, this paper recommends that the federal agency with the greatest stake in the matter — notwithstanding its conceded lack of regulatory jurisdiction over these speakers — take the lead in trying to define what types of attorney drug advertising cross the line. Only then might state officials and courts get the message that some client-seeking advertisements might well mislead patients in ways that threaten their health.