New State Restrictions on Attorney Television Advertising Go into Effect Sunday, Sept. 1

posted on 8.26.2019

New provisions affecting a specific type of attorney television advertising in Texas go into effect Sept. 1 pursuant to SB 1189 by Sen. Dawn Buckingham, R-Lakeway, which became law with Gov. Greg Abbott’s signature in June. The new law is meant to curtail intentionally misleading television advertisements for certain legal services and does not apply to radio or Internet advertising.

In recent years, there has been a significant increase in the number of television legal advertisements focusing on prescription drugs, medical devices, asbestos-caused cancer, and other health-related issues that inform viewers they may be entitled to financial compensation if they call the phone number on their screen.

Viewers calling these numbers believe they are talking with a legal representative, when in some cases, the entity paying for the ad is not actually an attorney, but in fact a "client harvester" that generates and sells clients in bulk to attorneys.

Concerns have also been raised about attorney advertisements relating to prescription drugs that could pose a significant public health risk.

There have been reported cases of individuals having stopped taking their necessary prescription drugs and suffering negative health consequences as a direct result of the information contained in a misleading advertisement.

Under the new law, an advertisement for legal services may not present itself as a  "medical alert," "health alert," "consumer alert," "public service announcement," or substantially similar phrase that would suggest to a reasonable viewer the advertisement is offering professional, medical, or governmental agency advice about medications or medical devices rather than legal services.

Such advertising may not display the logo of a federal or state government agency in a manner that suggests to a reasonable viewer the advertisement is presented by a federal or state governmental agency or by an entity approved or affiliation with a federal or state governmental agency.

This type of advertising also may not use 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.

Texas television broadcasters should pay special attention to the new law’s required warnings and disclosures which must be made visually and aurally in this type of attorney television advertising.

• At the beginning of the advertisement, the following must be stated: "This is a paid advertisement for legal services".
• The identity of the sponsor of the advertisement must be named aurally and visually, and either the identity of the attorney, or, the name of the law firm primarily responsible for providing solicited legal services to a person in response to the advertisement; or the manner in which a responding person's case is referred to an attorney or law firm if the sponsor of the advertisement is not legally authorized to provide legal services to clients. 
• Requires an advertisement for legal services soliciting clients who may allege an injury from a prescription drug approved by the FDA to include an aural and visual statement: "Do not stop taking a prescribed medication without first consulting a physician."

The visual statements must be viewable “clearly and conspicuously, and for a sufficient length of time for a viewer to see and read the statement.”  The law provides direction to courts when considering a case brought by a local District Attorney or Texas Attorney General.  Essentially the law gives courts some guidance on what satisfies the disclosure requirements, which is useful to broadcasters.

Courts may not:

• Find a visual statement in an advertisement is noncompliant if the statement is presented in the same size and style of font and for the same duration as a visual reference to the telephone number or Internet website of the entity a responding person contacts for the legal services offered or discussed in the advertisement.
• Find a required verbal statement to be in violation of the law if it is audible, intelligible, and presented with equal prominence as the other parts of the advertisement or if the statement is made at approximately the same volume and uses approximately the same number of words per minute as the voice-over of the longest duration in the advertisement.

Violations will be considered a deceptive act or practice under the Texas Business and Commerce Code but it does not create a private cause of action.

Additionally, if the State Bar of Texas’ advertising review committee finds the ad compliant before it runs and informs the sponsor of such, a case may not be brought by a local district attorney or by the consumer protection division of the attorney general's office.

Under the new law, the local district attorney or attorney general’s office can demand the sponsor cease advertising, but the advertiser must be given a “reasonable amount of time to ensure the advertisement is withdrawn.”

“While the new law applies specifically to attorney advertisers, stations should exercise caution when considering accepting such commercials and be prepared to discuss an advertisement’s content with the prospective client,” said Paul Watler, an attorney with TAB’s Texas legal counsel, Jackson Walker LLP.

While there is no private cause of action under the law, a local district attorney or the consumer protection division of the attorney general's office could conceivably seek a cease and desist order to stop the advertisement from being broadcast.

Watler said stations should consider some good practices when deciding whether to broadcast such advertising:

• Have some type of indemnity provision in sales agreements for cost or damages that could flow from carrying the advertisement 
• Ask the potential client to represent in writing that the proposed advertisement complies with all laws, including this new statute
• Ask the potential client to demonstrate they have sought and obtained preclearance by the State Bar of Texas’ advertising review committee

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

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