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FTC Identifies Concerns With Plaintiff’s Lawyers Advertisements Concerning Risks Associated With Pharmaceutical Drugs

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. 

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About this Author

Clancy Galgay Associate White Collar Defense & Government Investigations Product Liability & Complex Tort Complex Commercial Litigation

Clancy is a seasoned litigator with experience defending significant lawsuits in multidistrict litigation as well as individual cases pending in state and federal courts across the country. He has served on multiple trial teams that have obtained defense verdicts and been awarded summary judgment in venues across the country. Clancy has experience managing all phases of litigation from initial risk assessment through trial, including leading e-discovery and working within budgets, counseling clients on various litigation risks, deposing fact and expert witnesses, drafting and arguing...

Daniel Herling, product liability, attorney, Mintz Levin, Consumer Product Safety Privacy & Cybersecurity Class Action Health Care Enforcement & Investigations Product Liability & Complex Tort Complex Commercial Litigation

Dan is highly regarded for his defense of product liability cases involving consumer products and deep knowledge of California’s consumer protection regulations and laws. He skillfully handles litigation, including class actions, around California’s Unfair Competition Law, Consumer Legal Remedies Act, and Safe Drinking Water and Toxic Enforcement Act (Prop 65), among others. He has served as a defense counsel in over 3,000 product liability cases involving pharmaceuticals, medical devices, food, cosmetics, over-the-counter drugs, and food and products marketed as containing natural ingredients. His client roster includes a wide range of life sciences and retail and consumer products companies.

Dan’s practice is focused on product liability issues relating to consumer products.

Specific to consumer class action lawsuits, Dan has successfully defended clients in class actions alleging false or misleading labeling or advertising of foods, cosmetics, over-the-counter drugs, dietary supplements, and homeopathic products. These claims have involved probiotics, “natural” ingredients, “clinically-proven” results, lack of efficacy, lack of substantiation, and failure to disclose. Representative statutes addressed include:

  • California’s Unfair Competition Law (Business & Professions Code § 17200) and similar unfair competition statutes in every state and the District of Columbia based on allegations of unfair competition or false advertising actions.
  • California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65)
  • Deceptive, False, and Misleading Advertising laws, such as California’s Business & Professions Code § 17500, and similar statutes proscribing advertising that contains false, deceptive, or misleading statements related to the sale of goods.
  • Consumer Legal Remedies Act (CLRA), California Civil Code § 1750, which establishes a remedy for unfair methods of competition and unfair or deceptive acts in the sale of goods to a consumer. CLRA violations commonly alleged against food and drug companies include “representing goods that have characteristics, ingredients, benefits or qualities that they do not have,” and “representing that goods are of a particular standard, quality, or grade.”
  • Breach of Express and Implied Warranties under state and federal laws, including the Magnuson-Moss Act.

His trial work also encompasses defense of pharmaceuticals & medical devices, sports equipment, commercial litigation and privacy and data security. Dan advises international companies in the pharmaceutical, medical device, food, over-the-counter drugs, homeopathic remedies, and dietary supplement, and sports industries. He has served as defense counsel in over 3,000 product liability cases and represented companies in both state and federal courts in California and the US. Dan routinely advises clients on regulatory matters as well as the selection of local counsel and lead trial attorneys. His commercial litigation practice has covered a wide spectrum of issues and included representation of several international companies based in Italy, Mexico, India, United Kingdom, Korea, Japan, Taiwan, Germany, Australia, and Switzerland.