I suspect that we’ve all had this experience.  You’ve finished a long day of work, had dinner, and have cozied up on the couch with a glass of wine to watch a re-run of your favorite TV show.  The show goes to commercial and all of a sudden, plastered across your screen, there is an “important consumer alert” concerning the alleged dangers of a particular prescription drug and that “if you or a loved one have been injured” to contact this law firm.  These types of ads have proliferated our lives and perhaps, like me, you’ve almost become numb to them.  However, I suspect you wouldn’t ignore the ads if you happened to be taking the product that was now being described as a potential danger to you.  In fact, you may become very worried that you were being exposed to a real danger that no one told you about, and then, God-forbid, you might start doing some quick research on the internet only to be exposed to even more advertisements or articles concerning the alleged dangers associated with the drug.  While many of us then might want to discuss these issues with our physicians to learn the real truth, many others simply stop taking the drug immediately without consulting with a physician.  Stopping a drug immediately, however, can be extremely dangerous and there are multiple reports of the FDA Adverse Event Reporting System of consumers who saw these types of ads, stopped taking the drug, and were then injured or even died.  In order to ameliorate this risk, the FTC has now stepped into the fray in order to protect the consumer who may stop taking a drug without consulting a physician.

On September 24, 2019, the FTC announced that it had sent letters to seven legal practitioners and lead generators  that expressed concerns that some television advertisements that solicit clients for personal injury lawsuits against pharmaceutical companies may be deceptive or unfair under the FTC Act.  The FTC did not identify who received the letters or which specific ads might be at issue.  However, the FTC confirmed that the letters expressed concerns that the ads may “misrepresent the risks associated with certain pharmaceuticals and could leave consumers with the false impression that their physician-prescribed medication has been recalled.” 

In addition, the FTC is concerned that the ads make deceptive or unsubstantiated claims about the risks of the drugs and that advertisers “must have competent and reliable scientific evidence to substantiate their claims about these purported risks.”   Call me a jaded-defense lawyer if you wish, but it is likely that a significant percentage of the claims made on these advertisements are not based in reliable scientific evidence and are instead an effort by Plaintiff’s lawyers to collect clients in order to leverage a large settlement.  Moreover, and perhaps most importantly, the benefits of many of the drugs at issue likely outweigh the risks associated with them, and stopping the drug could be more dangerous than actually continuing on the drug.

The FTC informed these seven practitioners that the advertisements that “cause, or are likely to cause, viewers to discontinue their medications might constitute an unfair act or practice” and “to prevent consumer injury… the ads may need to include clear and prominent audio and visual disclosures stating that consumers should not stop taking their medications without first consulting their doctors.”  In addition, the FTC reminded the seven practitioners that advertisements promoting goods or services should be identifiable as advertisements from the beginning—and should not be disguised as a public service announcement—and “strongly encourage” the seven practitioners to ensure that their advertising is not unfair or deceptive.  The FTC will be monitoring their actions going forward and stated that it will take “follow-up action as warranted.”

In sum, the FTC has now shown a willingness to act if a company’s product is being targeted by misleading or deceptive advertising by Plaintiff’s lawyers that could harm consumers.  Therefore, your lawyers may have a new arrow in their quiver to put a stop to it, or at minimum, soften the blows from the advertising.