Fear factor? | Federal Trade Commission

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

What on earth happened? These ads solicit potential customers to file personal injury lawsuits against drug and medical device manufacturers. FTC staff are concerned that certain ads may give consumers the false impression that they are public “medical alerts” or have been approved by the FDA. Other ads may deceptively convey that certain drugs have been recalled or cause more harm than good. The risk is high: Consumers may stop taking prescription drugs without consulting their health care provider—a potentially dangerous behavior.

Let’s be clear: The issue here is not your average lawyer ad. For decades, the FTC has fought against overly broad restrictions that could impair attorneys’ ability to convey truthful and non-misleading messages to consumers. Rather, the letters represent a fundamental principle of FTC law: advertising of services or products cannot be unfair or deceptive. Lawyer advertising is no exception.

That’s why we contacted seven legal practitioners or lead generators who run such ads, encouraging them to review their ads to ensure they are not deceptive or unfair. According to the letter, FTC staff will continue to monitor potentially misleading advertisements and will take follow-up actions as necessary.

Every ad is different, but the Federal Trade Commission has identified some common practices that should be avoided when marketing legal services or any other product or service.

Advertisements should make it clear from the outset that they are ads. Some of the ads in question began with text and graphics that could give consumers the false impression that they were viewing a public service alert or FDA safety warning. The FTC case made it clear that advertising and promotional messages should be identified as advertising from the outset.Federal Trade Commission Enforcement Policy Statement Regarding Deceptive Format Ads Provides practical guidance on keeping ad formats non-deceptive. If you mention actions taken by government health agencies in your ad, make sure your explicit or implicit message to consumers is accurate.

Beware of the impact of scare tactics. This is a fact-specific analysis, but advertising that emphasizes the risks of a drug and causes consumers to stop taking it may constitute an unfair act or practice. It would be wiser to clearly inform people that they should not stop taking their medication before discussing it with their doctor. Some of the ads in question included this information in glossy footnotes—which is not allowed under Federal Trade Commission law. Given the significant risks of discontinuing prescription medications without medical consultation, disclosure of this effect should be easily detectable, should use simple and clear language, and should be made audibly and visually.

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

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