CCL told a West Virginia district court that the state attorney general failed to meet his burden in justifying a state law regulating attorney advertising related to drug and medical device cases that prohibits the use of certain words and adds a long list of disclaimers, in a reply brief in support of summary judgment.

    The law was enacted last year, based on the idea that consumers who see the advertisements soliciting business from those harmed by certain drug or medical devices would stop taking their medication or mistake the advertisements for medical advice. Representing two lawyers and one of their clients, along with the Segal Law Firm of West Virginia, CCL President Robert Peck obtained a preliminary injunction last June so that the law never went into effect. Earlier this year, plaintiffs sought summary judgment to turn the preliminary injunction into a permanent one, arguing that categorical bans against truthful, non-misleading advertising could not withstand constitutional scrutiny, such as a ban on telling consumers that the drug had been voluntarily recalled by the manufacturer.

     In addition, the disclaimers were burdensome, dominating the advertising and included a requirement that the lawyer provide medical advice by telling consumers not to stop taking a drug until consulting their doctors.

    In response, the West Virginia Attorney General, who was the defendant in the case, insisted that this was an ordinary consumer measure, justified by some polls and incidents in other states.

    Today's brief explained that the justification was a hollow one because it adopted precisely the paternalistic view that the Supreme Court has held cannot justify limits on protected commercial speech that is truthful and non-misleading. A ruling on the summary judgment motion is expected soon.