Texas Senate Passes Bill Regulating Attorney Advertising Regarding Prescription Medication and Medical Device Litigation

On April 11, 2019, the Texas Senate passed by a vote of 20-10 bipartisan Senate Bill 1189 regulating attorney advertising relating to prescription medication and medical device litigation.

The bill prohibits certain advertisements for legal services that use the phrases “medical alert,” “drug alert,” “public service announcement,” or other language to suggest that “the advertisement is offering professional, medical, or government agency advice about medications or medical devices rather than legal services.”

Regulated advertisements also may not display a federal or state government logo to suggest that the advertisement is affiliated with or endorsed by that government agency. Finally, “use of the term ‘recall’ when referring to a product that has not been recalled by a government agency or through an agreement between a manufacturer and government agency” also constitutes “prohibited advertising” as defined in the bill.

Most notably, in addition to other disclosure requirements, these lawyer advertisements now must warn viewers that they should not stop taking prescribed medication without first talking to their doctors. The bill outlines in detail how a lawyer must make such disclosures, including the decibel level of the disclosures and how long text disclosures must be displayed on the TV screen during the ad.

Violation of this legislation is considered a violation of the Texas Deceptive Trade Practices Act. The attorney general or a district attorney is required to bring an enforcement action against the violating law firm under subchapter E, chapter 17 of the Texas Business and Commerce Code; all remedies available under that subchapter would be available for such a violation—including civil penalties up to $250,000. The bill does not carve out a private cause of action.

Senate Bill 1189 seeks to curb “client harvesting” in Texas. The Texas Attorney General could reach out-of-state entities targeting potential Texas clients with these kinds of advertisements. While some organizations, such as Texans for Lawsuit Reform, support the bill, others, including the Texas Trial Lawyers Association, argue that it is unconstitutional because the new law will chill free speech. A constitutional challenge to the bill is likely.