On March 14, 2022, Louisiana State Senator Barrow Peacock introduced SB 378 into the Louisiana Senate. The bill seeks to prevent all misleading or deceptive advertisements, including those that:
(1) [Are] presented as a medical alert, health alert, drug alert, public service announcement, or substantially similar phrase that suggests to a reasonable viewer the advertisement is offering professional, medical, or government agency advice about any medication or medical device. Proposed law does not apply to any advertisement by a person who is authorized by law to offer professional, medical, or government advice about any medication or medical device in an advertisement.
(2) 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 government agency or by an entity approved by or affiliated with a federal or state government agency.
(3) Use the term “recall” when referring to a product that has not been recalled in accordance with applicable state or federal regulation.
The bill further provides:
- That an advertisement referencing a prescription drug or medical device approved by the FDA must identify who sponsored the ad and whether the drug or medical device is FDA approved, unless the drug or medical device has been recalled in accordance with state or federal law.
- That an advertisement referencing an FDA approved prescription drug must state: “Consult your physician before making decisions regarding prescribed medication or medical treatment.”
This bill is yet another attempt by Senator Peacock to restrict advertising relating to medical device and pharmaceutical litigation. His effort last year failed due to a veto by Governor John Bell Edwards. This year’s effort remains problematic for at least two reasons.
First, the bill may run afoul of the Louisiana constitution’s principle of separation of powers. The Louisiana Supreme Court–not the legislature–has the “exclusive and plenary power to define and regulate all facets of the practice of law, including the admission of attorneys to the bar, the professional responsibility and conduct of lawyers, the discipline, suspension and disbarment of lawyers, and the client-attorney relationship.” Succession of Wallace, 574 So. 2d 348, 350 (La. 1991). A legislative act purporting to regulate lawyers has a “commendatory effect only” unless the Louisiana Supreme Court approves the regulation “in aid of its inherent judicial power.” Wallace, 574 So. 2d at 350. This obvious problem was one of the reasons Governor Edwards vetoed last year’s bill. Granted, this year’s bill–unlike last year’s–does not expressly mention legal services. But it doesn’t expressly exclude them either. To the extent this bill would regulate lawyer advertising outside of the Louisiana Rules of Professional Conduct, it may be an unconstitutional encroachment by the legislature on the supreme court’s lawyer regulatory authority.
Second, the bill may violate the United States Constitution by unduly restricting the freedom of speech. Commercial advertisements are “commercial speech” protected by the First Amendment. The state cannot regulate commercial speech unless: (1) it has a substantial interest in restricting such speech, (2) its regulation directly advances that substantial interest, and (3) it narrowly tailors the regulation to serve that substantial interest. While there may be a substantial state interest in protecting consumers who use prescription drugs and medical devices, SB 378 would do little to advance the state’s substantial interest. Moreover, this rule is arguably not narrowly tailored to advance this interest.