As we’ve discussed earlier several times, there is a lot of lawyer advertising on television and in other media, and it can have adverse effects. A lot of it also is of questionable accuracy, giving “the false impression that they reflect medical or governmental advice,” using phrases such as “consumer medical alert,” “health alert,” “consumer alert,” or “public service health announcement” to disguise their solicitation, “display[ing] the logo of a federal or state government agency in a manner that suggests affiliation with the sponsorship of that agency,” and calling something a “recall” although that “product that has not been recalled by a government agency.” Recht v. Morrisey, 32 F.4th 398, 406 (4th Cir. 2022) (affirming constitutionality of state legislation prohibiting these practices).
However, we recognize that attorney advertising is First Amendment protected commercial speech. E.g., Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985). It is also big business – as discussed in the recent ATRA publication, “Legal Services Advertising in the United States”:
Trial lawyers and aggregators increasingly spend large sums of money on advertising to recruit new clients for class action lawsuits. In 2024, it is estimated that more than $2.5 billion were spent on more than 26.9 million ads for legal services or soliciting legal claims across the United States. When compared with the same time period in 2020, spending on these ads increased more than 32%.
Id. at Introduction & Background (unnumbered page 2). Our current Secretary of HHS certainly knows this, as he formerly worked at Morgan & Morgan, which is by far the most prolific plaintiff lawyer advertiser of all. Id. at p.8 (M&M spent almost 4 times as much on advertising as any other p-side firm).
Marketing of prescription medical products is also widespread. As the Supreme Court held in Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (our post here) – “Speech in aid of pharmaceutical marketing . . . is a form of expression protected by the Free Speech Clause of the First Amendment.” Id. at 557. Sorrell held a state statute that attacked pharmaceutical marketing unconstitutional as a content-based speech restriction. That statute “disfavor[ed] marketing, that is, speech with a particular content. More than that, the statute disfavor[ed] specific speakers, namely pharmaceutical manufacturers.” Id. at 564. That pharmaceutical marketing was also “commercial speech” didn’t matter where the government attempted suppress it on a “viewpoint”-related basis:
[The statute] imposes more than an incidental burden on protected expression. Both on its face and in its practical operation, [the] law imposes a burden based on the content of speech and the identity of the speaker. While the burdened speech results from an economic motive, so too does a great deal of vital expression. [The] law does not simply have an effect on speech, but is directed at certain content and is aimed at particular speakers.
Id. at 567 (citations omitted).
The FDA recently sent out a flood of vague, nearly identical form “warning letters” that attacked a particular type of pharmaceutical marketing – direct-to-consumer (“DTC”) advertising – as supposedly “misleading” without identifying any particular advertisement run by the recipient or any particular “misleading” attribute of any such advertisement. This is a dramatic change from FDA practice, with warning letters previously being directed at specific ads, specific allegations of violations, and proposing specific remedial action. Moreover, the accompanying FDA “news release” does not does not read like any regulatory document that we’ve ever seen, but rather like a plaintiffs’ lawyers diatribe, calling DTC advertising that has been legal (and not tortious) for decades as a “pipeline of deception” and vaguely attacking “deceptive practices” and “increasingly lax” FDA enforcement in order to “hold the pharmaceutical industry accountable.” That’s not even-handed regulation; that’s a p-side closing argument Id. And there’s more. The FDA even threatens high-tech surveillance of pharmaceutical advertising:
Going forward, the agency will aggressively deploy its available enforcement tools. The FDA is already implementing AI and other tech-enabled tools to proactively surveil and review drug ads.
Id.
This blunderbuss approach is every bit the sort of viewpoint-based attack on pharmaceutical advertising, and in particular on DTC advertising, that was held unconstitutional in Sorrell. The same sort of intent to suppress pharmaceutical free speech that was present in Sorrell (“preventing [drug] detailers − and only detailers − from communicating . . . in an effective and informative manner,” 564 U.S. at 564), practically oozes from every pore of the FDA’s broad and vague attack. Indeed, this action is probably more violative than Sorrell of the First Amendment, since its broad and vague threats of enforcement and surveillance smack of both a prior restraint and a blatant attempt to chill pharmaceutical free speech (except for plaintiffs’ lawyers) generally.
So both lawyer advertising and pharmaceutical advertising are big business. The current HHS regime – now run by a plaintiff’s lawyer – plainly seeks to tilt the playing field so that plaintiffs’ lawyers have free reign, while suppressing speech from the other side. That would have the effect of making the media even more dependent on lawyer money for its revenue than it is now. We don’t think that’s fair, or constitutional. As we said over eight years ago:
The bottom line is this: Lawyer advertising holds no preferred position among types of commercial speech. Indeed, there are no “types” of commercial speech – it’s all the same constitutionally. So when attorneys on the other side advocate bans on truthful manufacturer speech, because supposedly even truthful off-label information is a threat to the public health, they should remember that the same thing can be said about truthful attorney advertising.
We’re quite willing to apply the same standards to both sides.
We’ve detailed the FDA’s very checkered history when it comes to the First Amendment and suppression of manufacturers’ truthful scientific speech. We fully expect to see another round, and assuming current precedent holds, to see the FDA take it on the chin once again.