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Tenn., Texas move to restrict content of legal services advertisements
June 6, 2019The Tennessee and Texas legislatures have approved bills limiting the content and format of legal services advertisements, particularly those advertisements targeting patients who have been injured by a prescription drug or device. The Tennessee law has been approved by the governor and will go into effect July 1, while the Texas bill, expected to be signed by the governor soon, is set to become effective Sept. 1. The bills restrict the use of certain terminology and require advertisements to identify the attorney or law firm that will provide services and to include warnings to consumers regarding prescription drug cessation. (S.B. 1189, 86th Leg., Reg. Sess. (Texas 2019); S.B. 0352, 111th Gen. Assemb., 1st Reg. Sess. (Tenn. 2019).)
Prohibited terminology includes the phrases “medical alert,” “health alert,” “consumer alert,” and “public service announcement.” The bills also limit the use of the word “recall,” allowing it only when a product has been recalled by a government agency or through an agreement between a manufacturer and a government agency. In addition, the bills restrict the use of government agency logos in such a way as to suggest that the advertiser is affiliated with a government agency.
In addition to these limitations, the legislation requires certain content to be included in legal services advertisements. Advertisements must identify the attorney or law firm responsible for the advertisement as well as the attorney or firm that would provide the solicited legal services to those responding to the advertisement.
For advertisements specifically targeting patients injured by prescription drugs and devices, the bills set forth additional disclaimer requirements. Legislation in both states requires a disclaimer advising patients not to stop taking prescribed medications without first consulting a physician. Tennessee’s law additionally requires disclaimers indicating that “discontinuing a prescribed medication without your doctor’s advice can result in injury or death” and disclosing that the drug or device remains approved by the FDA.
Both state bills specify that required statements must be clear and conspicuous. The Tennessee law applies broadly to advertisements for legal services, including television, radio, internet, and print publications. Tennessee requires written statements to be clearly legible and spoken disclosures to be plainly audible. The Texas bill applies more narrowly to television advertisements only and requires statements to be provided for a sufficient length of time for viewers to see and read the content.
Former state legislator and Texas Trial Lawyers Association board member Craig Eiland of Austin said that “by working with the bill authors, we were able to limit the Texas bill to TV advertisements only.” He added that the Texas bill also was amended to “create a ‘safe harbor’ for advertisements cleared through the state bar review process that is already in place in Texas.”
First Amendment challenges are expected in both Tennessee and Texas. Similar bills were introduced in Florida, Kentucky, and West Virginia but failed to advance before the legislatures’ adjournment dates. Legislation is pending in Louisiana, whose legislature is expected to adjourn this week.
Gerard Stranch, of Nashville, Tenn., who will be handling the expected challenge to the Tennessee law, said the law “unfairly singles out lawyers and denies them their First Amendment rights, while placing no such limitations on pharmaceutical company or health care provider advertisements.”
Eiland called the Texas bill “an unconstitutional restraint on commercial free speech” and added that he “believes it will be challenged and overturned.”