In a victory for patient protections, a federal appellate court upheld a West Virginia law designed to put guardrails on unscrupulous “bad drug” advertising.
The law specifically:
- blocks the use of government logos and misleading terms
- requires ads include a disclosure that the content is “paid advertisement for legal services”
- states ads cannot give the impression of being medical advice.
These types of advertisements must also include a warning: “discontinuing a prescribed medication without your doctor’s advice can result in injury or death.”
Victory Years in the Making
The West Virginia legislature passed the bill in March of 2020. Shortly after it was signed by the governor, a group of personal injury lawyers sued in federal court to block the law from going into effect, claiming a First Amendment violation. A West Virginia federal court agreed, which prohibited the state from enforcing the law.
West Virginia’s attorney general appealed the ruling, arguing that a state isn’t blocking free speech when the limitation is rooted in safeguarding the health and safety of its citizens.
In the end, the United States Court of Appeals for the Fourth Circuit agreed – securing a win against deceptive advertising. In its opinion, the court noted the law was enacted “to protect the health of West Virginia citizens who may be misled into thinking that attorneys are reliable sources of medical advice.”
Deceptive Ads Cost Lives
These “bad drug” ads claim that certain medications or medical devices are dangerous or deadly. They are often labeled as “medical alerts” or “public service health announcements,” there to warn patients about potential dangers. Some feature the logo of a government agency, even though they aren’t run by the government. In reality, they scare consumers into signing up for lawsuits, or worse, discontinuing prescribed medications without talking to their doctor first.
The real-life impact of these “bad drug” ads was explored by a 2019 Food and Drug Administration study. It found, tragically, that patients’ decisions to abruptly discontinue the use of prescribed medication – a result of these misleading ads – can result in catastrophic consequences, including death.
Efforts to Enact Patient Protections
West Virginia now joins four other states – Indiana, Kansas, Tennessee and Texas – in having a law to ensure the content of this type of advertising is not misleading.
The federal court’s recent decision could provide legal backing as other state legislatures consider similar laws aimed at protecting the public health and curtailing the preventable medical mishaps that can result from viewing “bad drug” ads.
