U.S. Federal Trade Commission building in Washington, D.C. Photo: Diego M. Radzinschi/ALM

A 2017 survey from the public opinion research firm Public Opinion Strategies found that nearly three-quarters of Americans had seen TV ads by attorneys warning about the dangers of certain pharmaceuticals. It turns out, the Federal Trade Commission has watched these ads too, and it doesn't always like what it sees.

Letters recently obtained by ALM show that several law firms and legal marketers across the country received warning letters in September over TV ads they were airing about allegedly dangerous medications that are now the subject of mass tort litigation. And, according to an FTC attorney, those letters were part of a new initiative by the agency aimed at keeping an eye on legal ads that may be alarming for viewers and could potentially lead them to stop taking their prescribed medications.

"The issue has been percolating for a while," Richard Cleland, an assistant director at the FTC's advertising practices division of the consumer protection bureau.

According to Cleland, the FTC has begun looking into alarming attorney advertising after getting some interest business chambers and members of Congress, including a letter from Rep. Andrew Harris, R-Maryland. Cleland said a 2016 resolution by the American Medical Association pledging to advocate for more warning requirements on attorney advertising also led agency officials to begin taking a look at the issue.

The AMA's resolution came after the the Heart Rhythm medical journal published a study in 2016 outlining more than 30 cases of people suffering strokes, heart attacks and even death when they decided to stop taking the blood thinner Xarelto after they saw alarming attorney ads about the drug.

The FTC's initiative—which comes in the wake of medical research and business groups' expressions of concern—is aimed at curbing attorney ads that could cause people to become so concerned about the safety of their medications they simply stop taking them, Cleland said.

In September, the FTC took its first direct actions by issuing warning letters to seven law firms and legal marketing companies across the country, sending out a press release about the warning letters and publishing an explanatory post on its website going over exactly what the FTC would be looking for when reviewing attorney ads.

The letters, obtained through a request under the Freedom of Information Act, showed that most of the problematic ads focused on the diabetes drug Invokana, which saw a wave of filings in Philadelphia in 2016 and has since become the subject of a multidistrict litigation in New Jersey federal court.

The letters were sent to MCM Services Group, a Minnesota marketing company; Amicus Legal Group, which is based in Valencia, California; the Boston-area law firm Sokolove Law; Knightline Legal, which is based in Redwood City, California; the Bel Air, Maryland, law firm KBA Attorneys; and the Houston-based law firms, Pulaski Law Firm and Matthews and Associates, which was part of the trial team that recently won a $33 million award in Philadelphia over an allegedly defective blood filter device.

Ketterer declined to comment about the letters, and ALM was unable to find a working phone number for MCM Services Group. All other organizations did not return a call seeking comment.

Five of the letters warned about Invokana ads, with some saying the ads gave the false impression that the U.S. Food and Drug Administration warned that patients should stop taking the drugs. Others allegedly warned of a substantial risk that users could suffer gangrene of the genitals, but, the letter notes, the FDA describes that condition as only a "rare side effect."

One letter focused on an ad about Xarleto, saying it implied that the risks of the drug outweighed the benefits. Another letter focused on ads about the heartburn medications Nexium, Prilosec and Prevacid, which, the FTC contended, mischaracterized the risk of stomach cancer by claiming that prolonged use of both prescription and over-the-counter heartburn medications—known as proton pump inhibitors—could double a person's risk of cancer. According to the FTC letter, the study referred to in the ad actually said the stomach cancer risk was only increased by 0.043%.

Cleland said that to his knowledge the FTC has not sent similar letters to attorneys warning about these types of ads in the past.

"It's not uncommon for us, where we are going into an area that we haven't been in, to use vehicles like warning letters, at least at an initial stage," Cleland said. "It serves an educational effect, and normally, we've found that we get pretty good compliance using that approach."

Cleland did not speak specifically about the letter sent out in September, but said that, beyond filing warning letters, the agency could open an investigation in a firm's conduct, which, depending on the findings, could lead to legal action either in court in through an administrative process. But, he said, the agency does not have the ability to simply fine the firms.

For now, Cleland said, the FTC will continue to eye the issue.

"At this point, we will continue to monitor and look at any complaints that we get," Cleland said.

Compliance attorneys said they were not surprised by the FTC's interest in attorney advertising.

"Health-related representations are always ripe for aggressive regulatory action," Richard Newman of New York-based Hinch Newman said.

Gordon Law Group attorney Andrew Gordon, who focuses on compliance in issues like advertising and e-commerce, said he was likewise not surprised, although he said there was little precedent for the actions, especially since the FTC often goes after ads that are aimed at getting people to buy products, rather than pursuing actions over concerns that people might stop using a product.

However, given the way attorney advertising has gone national in recent years, Gordon said it makes sense the FTC would want to keep an eye on the issue.

"Historically, it's been state bar associations that are the most concerned with advertising, but now there are some attorneys that have these large national campaigns," he said.

Gordon said he hoped lawyers will review their ads in light of the FTC's new guidance and will take the FTC's warnings seriously, as the FTC has broad discretion when it comes to pursuing potential violations of the FTC Act. He noted that things as small as putting warnings at the beginning of an ad rather than at the end could be the difference between getting a warning letter and not.

"A lot of attorneys have to walk a thin line between educating the public and scaring them," he said.

Although the letters may have come as a surprise to some practitioners, the reasoning behind them and the dual press releases could have something to do with a concept all attorneys should be familiar with: notice.

"Attorneys are an interesting area to potentially target," Gordon said. "They're trying to put everything out there, so later, if cases are brought, the violations can be pointed to, and the FTC guidance that's been made public."

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