CCL filed a motion for summary judgment March 15, asking a federal district court to declare a West Virginia statute restricting attorney advertising in medication and medical device cases unconstitutional. Last year, CCL prevailed on a motion for a preliminary injunction in the case, which is issued when there is a substantial likelihood of prevailing overall.

    In its motion, CCL argued that there can be no justification that prevents truthful information from being conveyed to consumers, yet the statute does precisely that. It bans the use of the term "recall" unless ordered by a government agency or through an agreement between a manufacturer and a government agency, even though nearly all recalls of drugs and devices regulated by the Food and Drug Administration are voluntary recalls by the manufacturer, often after a request by the FDA. When the manufacturer refuses to engage in a voluntary recall, the Department of Justice sues to obtain a court order requiring the product be withdrawn from the market. That court order does not qualify as an agency directed recall. 

    In addition, the statute bans the use of "consumer alert" or similar phrases from lawyer advertising, which also includes all forms of solicitation of business, including a law firm's website. It requires all covered advertising advise consumers that the drug or device is still approved by the FDA, even if the FDA has requested a recall or the Justice Department has sued to remove the product from the market. Another provision requires lawyers to advise consumers that they should not stop taking medication without a doctor's advice, a form of medical advice that cannot be required of a commercial speaker talking about legal services.

    The case is called Recht v. Justice and is pending in the U.S. District Court for the Northern District of West Virginia. In the case, CCL is co-counsel with the Segal Law Firm in West Virginia.