Ad Trade Groups Unusually Quiet on Proposal to Mandate Language in Lawyers' Advertising

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The head of the House Judiciary Committee wants lawyers' ads seeking plaintiffs against pharma companies to tell patients not to hastily abandon the same drugs they might be suing over.
The head of the House Judiciary Committee wants lawyers' ads seeking plaintiffs against pharma companies to tell patients not to hastily abandon the same drugs they might be suing over. Credit: Gray & White

Advertising trade associations routinely fight new government restrictions on ads for tobacco, food, drugs and consumer finance, all on First Amendment grounds. Just on Monday, the Association of National Advertisers said it had filed a court brief opposing a Berkeley, Calif., ordinance requiring retailers to warn consumers about cellphone radiation.

But on one recent call for restrictions, the ANA and the American Advertising Federation are silent.

That's the proposal last month by Rep. Bob Goodlatte (R.-Va.), chairman of the House Judiciary Committee, to make attorneys' ads seeking plaintiffs for lawsuits over allegedly dangerous drugs also caution consumers to keep taking the drugs anyway, at least until they talk to their doctors.

Goodlatte is acting on a resolution last year by the American Medical Association, citing research that lawyer ads are scaring some patients into not taking medication that they need.

He sent a letter last month to The American Bar Association and state bar associations asking them to adopt rules that would require such language. He hasn't proposed legislation yet, though the AMA called for it and he hasn't ruled it out.

It's unlikely that the bar associations will do Goodlatte's bidding. ABA President Linda Klein said in a response that lawyers' right to advertise is protected by the First Amendment and a 1977 Supreme Court decision, while states all already have laws in place against false or misleading advertising.

It's the sort of thing ad trade groups usually say, too. But not now.

"We have not taken a close look at that yet," said Clark Rector, exec VP-government affairs of the AAF, about restrictions on trial lawyers' ads at a meeting of the group's Cincinnati chapter last week. "We recognize there are times when disclaimers are appropriate to give the full message. We try to stay out of inter-industry squabbles."

The ANA, whose members include drug companies such as Johnson & Johnson that have backed the effort to regulate trial-lawyer's drug ads, isn't taking a position at this time either, said Dan Jaffe, group exec-VP, government relations of the ANA.

A person familiar with the matter said the group's membership hasn't expressed any interest in taking a stand on the matter.

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