Fear factor?

You’ve probably seen them on TV: announcements with prominent warnings about FDA actions involving certain prescription drugs or medical devices. But they aren’t official health and safety recalls or alerts from the Food and Drug Administration. They’re something else – and FTC staff has sent letters to some of the people involved.

What’s really going on? They’re ads soliciting potential clients for personal injury lawsuits against makers of pharmaceuticals and medical devices. FTC staff is concerned that some of the ads may leave consumers with the false impression that they’re public “medical alerts” or have been approved by the FDA. Other ads may deceptively convey that certain drugs have been recalled or cause harms that outweigh their benefits. The risk is significant: Consumers may stop taking their prescription medications without consulting their healthcare providers – a potentially dangerous course of conduct.

Let’s be clear: The issue here isn’t attorney advertising in general. For decades, the FTC has fought overly-broad restrictions that may squelch attorneys’ ability to communicate truthful and non‑misleading information to consumers. Instead, the letters typify a fundamental principle of FTC law: Ads for services or products can’t be unfair or deceptive. Attorney advertising is no exception.

That’s why we’ve contacted seven legal practitioners or lead generators that run ads like this, encouraging them to review their ads to ensure they’re not deceptive or unfair. According to the letters, FTC staff will continue to monitor for potentially misleading ads and will take follow-up action as warranted.

Each ad is different, but the FTC spotted some common practices to avoid if you’re marketing legal services or any other product or service.

Ads should be clear from the start that they’re ads. Some of the ads in question begin with wording and graphics that could leave consumers with the misimpression that they’re watching a public service alert or an FDA safety warning. FTC cases clearly establish that ads and promotional messages should be identifiable as advertising from the very beginning. The FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements offers practical guidance on keeping ad formats non-deceptive. And if you refer in your ads to actions taken by government health agencies, make sure what you convey to consumers expressly or by implication is accurate.

Be careful about the impact of scare tactics. It’s a fact-specific analysis, but an ad that highlights a medicine’s risk and leads consumers to discontinue their medication could constitute an unfair act or practice. The wiser course of action is to clearly disclose that people shouldn’t stop taking medicines until they’ve talked it over with their doctor. Some of the ads in question included that information in fine-print footnotes – a no-go under FTC law. Given the significant risks of discontinuing prescription drugs without medical consultation, a disclosure to that effect should be easy to spot, should use simple unambiguous language, and should be made both audibly and visually.

Health claims must be backed by sound science. Even if you’re not advertising a health product, the bedrock advertising principle that health-related claims must be supported by sound science remains unchanged. This means that any claims about the risks or dangers of a drug or device must be supported by competent and reliable scientific evidence.