2018-25

WHEREAS, as defined below, misleading legal services advertisements regarding medications, medical devices and treatments are scaring people from taking their prescribed medications or using their prescribed medical devices or seeking treatment; and,

WHEREAS, according to the American Medical Association, these fearmongering lawsuit ads pose a threat to public health because they are unduly alarming and fail to describe the benefits of the drugs along with the side effects they focus on;  and,

WHEREAS, in advertising legal services regarding medications, medical devices and treatments, it is misleading if the advertiser does any of the following:

• Fails to disclose at the outset of the advertisement that: “This is a paid advertisement for legal services”; or,

• Presents an advertisement as a “medical alert,” “health alert,” “consumer alert,” “public service announcement” or similar term; or,

• Displays the logo of a federal or state government agency in a manner that suggests affiliation with or the sponsorship of that agency; or,

• Uses the word “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; or,

• Fails to identify the sponsor of the advertisement; or, 

• Fails to indicate the identity of the attorney or law firm that will represent clients, or how cases will be referred to attorneys or law firm that will represent clients if the sponsor of the advertisement may not represent persons responding to the advertisement; and,

WHEREAS, many of the firms running the advertisements are not law firms, but are in fact non-attorney lead-generation companies who then sell the leads to law firms;  and, 

WHEREAS, some unscrupulous firms have violated patient privacy by obtaining and using private health information to identify and solicit patients to file lawsuits.

THEREFORE, BE IT RESOLVED that the National Hispanic Caucus of State Legislators calls upon state Legislatures, state Supreme Courts, Bar Associations, Medical or health-related licensing bodies, and consumer protection agencies, including the Federal Trade Commission, as applicable, to adopt the appropriate statutes, regulations or ethical guidelines so that:

IN THE FIRST PLACE, 

NO PERSON, including licensed professionals, shall use, cause to be used, obtain, sell, transfer or disclose to another person, without written authorization from the patient, a patient’s protected health information for the purpose of soliciting or advertising for legal services; and,

THAT A VIOLATION of the above rule shall constitute a violation of health privacy law, professional ethics and/or a deceptive trade practice, as the case may be; and,

THAT IN ADDITION to any other remedy provided by law, a person who violates this prohibition shall be guilty of an appropriate criminal offense, which should be aggravated if done with the intent of financial gain; and,

THAT THIS PROVISION shall not be construed to apply to the use or disclosure of protected health information to an individual’s legal representative in the course of any judicial or administrative proceeding, or as otherwise permitted or required by law; and,

IN THE SECOND PLACE, and under penalty of felony and of disbarment or removal authorization to do business, as appropriate, an advertisement for legal services soliciting clients who may allege an injury from a prescription drug or medical device or treatment approved by the U.S. Food and Drug Administration shall not be misleading, as defined above, and shall, in a clearly intelligible and conspicuous manner:

DISCLOSE that the drug or medical device remains approved by the U.S. Food and Drug Administration, unless the product has been recalled or withdrawn; and,

INCLUDE the following warning: “Do not stop taking a prescribed medication [or using the medical device or treatment, as applicable] without first consulting with your doctor.  Discontinuing or reducing the use of a prescribed medication [or medical device or treatment, as applicable] without your doctors’ approval can result in injury (or death).”

THE NATIONAL HISPANIC CAUCUS OF STATE LEGISLATORS RATIFIED THIS RESOLUTION, AS AMENDED, ON DECEMBER 8, 2018, AT ITS ANNUAL MEETING IN SAN DIEGO, CALIFORNIA.