Asking the Fourth Circuit to affirm a district court's decision holding a lawyer advertising law enacted by West Virginia unconstitutional, CCL President Robert S. Peck told the judges that the categorical prohibition of the use of the word "recall" by lawyers advertising for drug and medical device injury cases could not be justified because the word is used in his client's advertisements in a factual and verifiable form and that the State of West Virginia had failed to meet its burden to proffer any evidence in support of their claimed need to bar the word.

     One member of the panel, Judge J. Harvey Wilkinson III, pushed back on this argument, asserting that use of the word "recall" would mislead some listeners into thinking that the government had ordered the recall, even though federal law defines recalls as voluntary withdrawals of drugs or medical devices from the market by the manufacturer and that the Food and Drug Administration (FDA) does not issue recalls. The judge also asserted that the court could simply defer to the legislature's judgment on the need for the prohibition, but Peck responded that that would utilize a "rational-relationship" test, rather than the intermediate scrutiny test that applies to commercial speech under the First Amendment. 

     In response to the evidence that the law also required disclaimers that take up 30-seconds of a 30-second television advertisement, Judge Wilkinson asked why it was not unconstitutional for drug manufacturers to have to reveal all the adverse effects of their drugs in their advertising. Peck provided two reasons: first, the adverse effects information was a condition of the companies' receiving a license to market the drug in the first place, which cannot occur without FDA approval. Second, he stated that the information was tied to the product being offered, a prescription drug. In contrast, the West Virginia law required an attorney offering legal services to provide information about drugs, even though the attorney was not attempting to sell drugs or medical services.

     The case, Recht v. Morrisey, is now under advisement in the Fourth Circuit.