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May 13, 2022

Attorneys Ask Full 4th Circuit to Revisit Decision on West Virginia Drug and Device Advertising Limits

Attorneys submitted a petition for a rehearing en banc to the Fourth Circuit Court of Appeals, asking the Court to reconsider an April decision in which the panel reversed a lower court ruling that a West Virginia law violates the First Amendment when it restricts advertising by lawyers seeking clients who have been harmed by drugs or medical devices.

The law in question regulates television, radio, newspaper, periodical, outdoor display, and other electronic or written advertisements for legal services soliciting patients who may have been injured by drugs or medical devices. The law prohibits the use of the word “recall,” except when a recall has been issued by the federal government or agreed upon by the government and the manufacturer; it prohibits the use of phrases like “consumer medical alert,” “health alert,” “consumer alert,” and “public service health announcement”; and it prohibits the display of state or federal agency logos. The three-person panel of the Fourth Circuit upheld the law,  finding that it did not violate the First Amendment because it is intended to prevent confusion and protect public health.

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