A bill winding its way through the Texas Senate would strictly regulate lawyer advertising for prescription medication and medical device litigation, and impose a civil penalty for violations under the state's Deceptive Trade Practices Act.

The Senate State Affairs Committee voted 9-0 to pass a substitute version of Senate Bill 1189 after a public hearing April 4. The bill now heads to the full Senate.

During testimony, Texans for Lawsuit Reform general counsel Lee Parsley said he supports the bill, which is meant to curb “client harvesters” from operating in Texas.

“The advertisers you see, they generate clients through a 1-800 number. All the clients are farmed out to other law firms,” Parsley said. “One of the things this bill does is allow the attorney general, through the (Defective Trade Practices Act) to reach the out-of-state entities harvesting clients in Texas.”

The committee's version of Senate Bill 1189, by Sen. Dawn Buckingham, R-Belton, would regulate television ads that promote a lawyer's services or solicit potential clients. The bill prohibits an ad from using terms like medical alert, health alert, public service announcement, or other terms suggesting the ad is offering medical or government advice about a medication or a medical device, rather than legal services. Displaying a government logo in an ad would not be allowed, if it suggested the ad was affiliated with the government. Unless a government agency had really recalled a medicine or device, the ad couldn't use the term recall.

The bill also requires ads to list disclosures, for example, making it clear the ad was for legal services, identifying the lawyer or firm, explaining which lawyer or firm would get a prospective client's case referral and more. Also, the ad would have to warn viewers that they should not stop taking prescribed medication without asking their doctors. The bill explains in extreme detail how a lawyer would have to make all the disclosures, such as listing how loud it must be or how long it must stay on screen.

Any violation of the legislation would be considered a violation of the deceptive trade practices act, and it would require the attorney general or a county or district attorney to bring an enforcement action against the violating lawyer or firm. There'd be no private cause of action.

But Austin solo practitioner Steve Bresnen, speaking on behalf of the Texas Trial Lawyers Association, said the bill would chill free speech, because it imposes vague and subjective requirements on lawyer ads and it threatens a large civil penalty—$250,000—for violations.

Bresnen expects litigation in the fallout.

He said, “That's an unconstitutional statute, and we will find out about it shortly after this bill becomes law.”

Read Committee Substitute Senate Bill 1189 here.