Warning: Lawyer Advertising May Be Hazardous to Your Health! A Call to Fairly Balance Commercial Solicitation of Clients in Pharmaceutical Litigation
8 Charleston L. Rev. 319
48 Pages Posted: 5 Nov 2013 Last revised: 15 May 2015
Date Written: October 31, 2013
Most Americans need not be anywhere near a doctor’s office to face a deluge of information about pharmaceutical products. A source of significant debate, pharmaceutical companies spend millions of dollars a year on direct-to- consumer advertising aimed at promoting drug products and the diseases they are approved to treat. Just as prevalent, though seemingly less controversial, is a different sort of consumertargeted advertising involving the delivery of commercial information about prescription drugs — advertising by law firms seeking clients in cases alleging the liability of those drug products.
While watching television, listening to the radio, and surfing the Internet, the average consumer must make a conscious effort to avoid the ongoing stream of advertisements for legal services. A great number of these advertisements caution and encourage users of prescription drugs to explore possible lawsuits against the companies that make and sell prescription drugs. Designed to shock the conscience, they employ a common pattern, hurling urgently toned and prominently positioned sound bites across the media spectrum in a manner that touts the harmful side effects and scientific data undisclosed by profit-hungry drug companies. The intended effect is to drive the consumer to contact the advertising lawyer about a potential claim arising from the prescription drug. In many cases, however, the impact of the authoritative — but unqualified — message of the lawyer can be much more: the consumer, already generally more susceptible by virtue of age or medical condition, loses confidence in, or simply stops taking, a medication prescribed by his or her physician.
This article contends that lawyer advertising intended to recruit prescription drug litigants poses a significant risk to the public’s health and should therefore be regulated in a narrowly-tailored manner that protects both the consumer and the recognized right of attorneys to engage in commercial free speech. Ultimately, it is proposed that lawyer advertising for pharmaceutical mass tort claimants should be fairly balanced in a manner akin to that required of pharmaceutical advertisers. Among other components, lawyers soliciting pharmaceutical litigants should make a series of clear and prominent disclosures regarding the nature of the commercial speech as advertising; should refer the consumer to neutral, third-party sources from which more information can be obtained; and should offer clear instruction to consult with a physician before making any decisions regarding the use of the subject medication after seeing the advertisement.
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