Fourth Circuit Rejects First Amendment Challenge to Ban on Deceptive Attorney Advertising

In a significant victory for West Virginia consumers, the U.S. Court of Appeals for the Fourth Circuit has ruled unanimously that a state law prohibiting deceptive advertisements that promote pharmaceutical and medical device litigation does not violate the First Amendment. Hunton Andrews Kurth represented the U.S. Chamber of Commerce as amicus curiae in the case, Recht et al. v. Morrisey.

The April 27 published decision overturns a permanent injunction issued by a West Virginia federal court in 2020, prohibiting the state from enforcing the law, which had been challenged by local personal injury attorneys as an unconstitutional burden on commercial speech.

Enacted in 2020, West Virginia’s “Prevention of Deceptive Lawsuit Advertising and Solicitation Practices Regarding the Use of Medications Act” regulates legal advertisements used to solicit plaintiffs in litigation stemming from the use of medications or medical devices.

In addition to a range of disclosure requirements, the statute prohibits legal solicitations that make misleading claims about medication and device recalls, employ taglines such as “consumer medical alert,” “public service health announcement” or use state or federal agency logos to suggest government endorsement of the advertisement. Any person who willfully and knowingly violates the Act is deemed to have engaged in an unfair or deceptive act or practice in violation of the West Virginia Consumer Credit and Protection Act.

In analyzing the plaintiff’s First Amendment challenge, the district court applied “strict scrutiny” to ultimately invalidate the Act’s commercial speech prohibitions. As to the Act’s disclosure requirements, the district court determined that they did not meet the standard for compelled disclosure of commercial speech set forth by the U.S. Supreme Court in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio.

On appeal, Hunton Andrews Kurth partner Elbert Lin submitted a brief and presented oral argument on behalf of the U.S. Chamber of Commerce on two key issues: that the district court should not have applied strict scrutiny in its First Amendment review and that the Act satisfied the requirements of Zauderer.

The Fourth Circuit agreed and as its decision makes clear, “[the] statute lies right at the heart of West Virginia’s police power” to ensure the health and safety of its residents. In so holding, the Fourth Circuit cited to substantial evidence showing that consumers have been misled by the advertising practices at issue, including a report issued by the U.S. Chamber of Commerce’s Institute for Legal Reform.

“Plaintiffs try to transfigure the Act into a sweeping and draconian enactment,” the court wrote. “But all West Virginia requires is that attorneys truthfully present themselves as attorneys. The Act’s prohibitions and disclosures work together to accomplish this end—and to protect the health of West Virginia citizens who may be misled into thinking that attorneys are reliable sources of medical advice. The Act survives constitutional challenge.”