SBOT Publishes Interpretation of New Texas Attorney Television Advertising Law, Narrows Range of Attorneys Covered by SB 1189

posted on 9.16.2019

The State Bar of Texas has published an FAQ on its website which details what it believes are the requirements of Texas’ new attorney television advertising law.

The SBOT’s interpretation significantly limits the number of Texas attorney television commercials that would be impacted by the new law.

SB 1189 by Sen. Dawn Buckingham, R-Lakeway, went into effect Sept. 1.

The State Bar Advertising Review Department bases its interpretation on “clear legislative intent” and says the new law applies “only to television advertisements for legal services regarding medications or medical devices.”

The SBOT’s FAQ also states the law applies only to advertisements for such legal services broadcast on or after Sept. 1.

Of particular interest to broadcasters is the SBOT’s view that SB 1189’s requirement for an opening visual and verbal disclaimer that the commercial is “a paid advertisement for legal services” does not apply to any other type of attorney television advertising broadcast in Texas.

The new law also has a visual and verbal sponsorship identification requirement. TAB notes that the FCC already requires licensed stations to specifically identity the sponsor of any broadcast commercial unless it can be clearly inferred from the product or service being advertised.

If the television advertisement is for legal services regarding medications or medical devices, the new law has prohibitions on the use of certain words, phrases, and graphics in such commercials.

TAB and its state counsel, Jackson Walker LLP, have reviewed the “as passed” language of the new law as well as the potential legislative intent expressed by lawmakers during Texas House and Senate floor debate on SB 1189.

Both the audio/visual and transcribed record of the floor debates as found in the House and Senate journals were reviewed.

“Our review of the Texas House and Senate floor debate on SB 1189 did not reveal any lawmaker discussion, either in the House or Senate journal, nor in the digital recordings of the floor sessions, which would limit those impacted by the bill,” said Stacy Allen, a partner with Jackson Walker. 

“Certain provisions of SB 1189 as written, in our view, would apply to all attorney television advertising in Texas.”

As a practical matter, however, the FAQ is a document meant to serve as guidance to Texas attorneys on the advertising of legal services.

“Any court reviewing a case brought under SB 1189 would give weight to a defense based upon the State Bar’s published FAQ,” Allen said.

TAB, therefore, is advising stations to review the SBOT’s FAQ here.

While the vast majority of Texas attorney television advertising is not, in the SBOT’s view, affected by SB 1189, there are certain attorney commercials for legal services in Texas that would subject to the new law.

Questions? Contact TAB’s Michael Schneider or call (512) 322-9944.

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