Last week the Federal Trade Commission announced that it sent multiple warning letters about television advertisements soliciting clients for personal injury lawsuits against drug manufacturers.  While not identifying specific ads, the FTC provided some guidance around the kinds of advertisements that it thought may have crossed the line, and suggested language that similar ads should include.

In the letters – which were sent to both legal practitioners and lead generators – the FTC expressed concern that certain ads may contain misrepresentations about the risks of specific pharmaceutical drugs and may have misled consumers into thinking that their prescription medication had been recalled.  The agency’s press release pointed to potentially misleading claims about “the risks of taking blood thinners and drugs for diabetes, acid reflux, and high blood pressure, among other conditions.”

Separately, the agency expressed concern that the lawsuit advertising discouraged consumers from taking needed medication by suggesting it was unsafe. The FTC explained that it considered this an “unfair” practice, meaning that an ad that is shown to discourage consumer from taking medication is potentially unlawful – regardless of whether it makes specific deceptive claims about the drug. According to the FTC, the lawsuit advertisements “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.”

Finally, the warning letters emphasize that advertisements should not mislead viewers into thinking that they are public service announcements or government-sanctioned alerts, including by using sensational warnings. The FTC has long required that advertisements be clearly identifiable as such rather than disguised as editorial or other non-commercial content.

The warning letters reflect the FTC’s continued focus on truthful advertising concerning health claims. For example, the FTC recently sent a number of warning letters to marketers of CBD products making health-related claims. And the agency has undertaken a renewed push for monetary penalties in advertising cases, including a recent $1.76 million settlement with a company that allegedly deceptively advertised and marketed its products as “organic.”

Wiley Rein attorneys regularly counsel clients, including advertisers and media outlets that accept ads, on advertising compliance. Please reach out to us with any questions.

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