The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Rules
BILL: SB 1246
INTRODUCER: Senator Yarborough
SUBJECT: Truth in Legal Advertising
DATE: April 18, 2023 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Collazo Cibula JU Favorable
2. McMillan McKay CM Favorable
3. Collazo Twogood RC Favorable
I. Summary:
SB 1246 creates s. 501.139, F.S., to regulate certain legal advertisements soliciting clients for
personal injury lawsuits against drug manufacturers. These regulations prohibit advertisements
for legal services from appearing to offer professional medical advice or advice from a
government entity. Moreover, advertisements soliciting clients who may allege an injury from a
prescription drug or medical device approved by the Food and Drug Administration must advise
such persons to consult with their physicians before making decisions regarding their
medications or medical treatment.
The bill takes effect on July 1, 2023.
II. Present Situation:
Potentially Deceptive Legal Advertising
In 2017, the U.S. Chamber Institute for Legal Reform commissioned an online survey of 1,335
adults, 500 of whom were currently taking, or had taken, one or more of 12 prescription drugs
frequently targeted in lawsuits against drug manufacturers. Nearly half (46%) of the survey
respondents said they would definitely or probably stop taking the drug immediately after seeing
the advertisement. More than half (58%) said they would definitely or probably reduce the
dosage to below the prescribed amount.1
Because survey respondents were willing to discontinue or reduce their medication without
consulting a doctor, the survey results show that certain types of legal advertising could have
severe consequences for patients, which has generated concern at the federal level.
1
U.S. Chamber Institute for Legal Reform, Bad for Your Health: Lawsuit Advertising Implications and Solutions, at 20-22
(Oct. 2017), available at https://instituteforlegalreform.com/wp-content/uploads/2020/10/TLA_Advertising-Paper-WEB.pdf
(last visited April 3, 2023).
BILL: SB 1246 Page 2
In 2019, the Federal Trade Commission (FTC) contacted seven legal practitioners and lead
generating companies to express concern that some of their television advertisements that solicit
clients for personal injury lawsuits against drug manufacturers may be deceptive or unfair under
the FTC Act. Specifically, the warning letters stated that some of the advertisements might:
Misrepresent the risks associated with certain medications and could lead consumers to the
false conclusion that their prescribed medication had been recalled.
Make deceptive or unsubstantiated claims about the risks of taking blood thinners and drugs
for diabetes, acid reflux, and high blood pressure, among other conditions; advertisers must
have competent and reliable scientific evidence to substantiate their claims about these
purported risks.2
May mislead consumers into thinking that they are watching a government-sanctioned
announcement, with some of the advertisements going so far as to include the U.S. Food and
Drug Administration (FDA) logo or text reading “FDA Warning,” suggesting that the
advertisements had been approved by the agency.3
The FTC also noted that the FDA’s Adverse Event Reporting System contained reports of
consumers who had viewed advertisements about the prescription drugs they were taking, then
discontinued those medications, and suffered harmful consequences.4 The FTC warned that
advertisements that cause, or are likely to cause, viewers to discontinue their prescribed
medications might create an unfair act or practice. As a remedial step, the FTC recommended
those advertisements “include clear and prominent audio and visual disclosures” stating that a
consumer should not stop taking prescribed medication without first consulting a doctor.5
In 2020, several Congressional representatives asked the Chairman of the FTC for a progress
report on the effects of the seven warning letters issued in 2019.6 The Chairman replied that each
recipient committed to heed the FTC warnings for future lawsuit advertising. When asked if
various renditions of the lawsuit advertisements violated the FTC Act, the Chairman essentially
said that it depended on the actual claim involved. The Chairman did note that FTC staff had
reviewed state laws enacted in West Virginia, Texas, and Tennessee to address deceptive lawsuit
advertisements but has not taken a position on federal legislation on the topic.7
2
Federal Trade Commission, FTC Flags Potentially Unlawful TV Ads for Prescription Drug Lawsuits (Sept. 24, 2019),
available at https://www.ftc.gov/news-events/press-releases/2019/09/ftc-flags-potentially-unlawful-tv-ads-prescription-drug-
lawsuits (last visited April 3, 2023).
3
Correspondence from The Honorable Greg Walden et al., Committee on Energy and Commerce, U.S. House of
Representatives, to Joseph J. Simons, Chairman of the Federal Trade Commission, at 1-2 (Nov. 2, 2020) [Walden Letter],
available at https://d1dth6e84htgma.cloudfront.net/legacy/uploads/2020/11/2020.11.02-Letter-to-the-FTC.pdf (last visited
April 3, 2023).
4
FTC, supra note 2.
5
Id.
6
See generally Walden Letter, supra note 3.
7
Correspondence from Joseph J. Simons, Chairman of the Federal Trade Commission, to The Honorable Greg Walden,
Committee on Energy and Commerce, U.S. House of Representatives (Nov. 17, 2020), available at https://d1dth6e84htgma.
cloudfront.net/legacy/uploads/2020/11/2020.11.17-FTC-to-Rep.-Walden-Lawyer-Ads-.pdf (last visited April 3, 2023).
BILL: SB 1246 Page 3
The referenced laws in West Virginia,8 Texas,9 and Tennessee10 contain provisions that are
similar to the ones in this bill. Notably, the West Virginia law was recently challenged in federal
court and determined to be constitutional.11
Regulation of Legal Advertising
Article V, Section 15 of the Florida Constitution vests exclusive jurisdiction in the Florida
Supreme Court to regulate admissions to the bar and to discipline admitted attorneys. 12 The
Florida Bar, as an official arm of the Florida Supreme Court, is charged with the duty of
enforcing the rules governing lawyer advertising and solicitation, and with assisting members of
The Florida Bar to advertise their services in a manner beneficial to both the public and the legal
profession.13
Florida’s legal advertising rules apply to all forms of communication soliciting legal services in
any print or electronic forum.14 Any lawyer who advertises services must file with The Florida
Bar a copy of each advertisement at least 20 days prior to the lawyer’s first dissemination of the
advertisement.15 The Florida Bar evaluates all advertisements filed with it to determine
compliance with its advertising rules, and issues an opinion either approving or disapproving the
advertisement.16 Lawyers who do not comply with the applicable rules are subject to professional
discipline.17
All advertisements for legal employment must include name and office location information.18 If
the case or matter will be referred to another lawyer or law firm, the advertisement must include
a statement to this effect.19 If more than one language is used in an advertisement, then any
words or statements required by the advertising rules must appear in each language used in the
advertisement.20 Moreover, any information required by the rules to appear in an advertisement
must be reasonably prominent and clearly legible if written, or intelligible if spoken.21
Additionally, a lawyer may not engage in deceptive or inherently misleading advertisements. For
example, an advertisement cannot use a voice or image that creates the erroneous impression that
the person speaking or shown is the advertising lawyer or a lawyer or employee of the
8
See W. VA. CODE s. 47-28-3, available at https://code.wvlegislature.gov/47-28-3/ (last visited April 3, 2023).
9
See TEX. GOV’T CODE ss. 81.151-156, available at https://texas.public.law/statutes/tex._gov't_code_section_81.151 (last
visited April 3, 2023).
10
See TENN. CODE. ANN. ss. 47-18-5601-5606, available at https://legiscan.com/TN/text/SB0352/id/1998216 (last visited
April 3, 2023).
11
See Recht v. Morrissey, 32 F.4th 398 (4th Cir. 2022) (evaluating various provisions of the West Virginia law that are similar
to provisions in SB 1246 and concluding that they permissibly regulate commercial speech).
12
The Florida Bar, Frequently Asked Questions About the Florida Bar, available at https://www.floridabar.org/about/faq/ (last visited
April 3, 2023).
13
R. Regulating Fla. Bar 15-1.1.
14 R. Regulating Fla. Bar 4-7.11(a).
15 R. Regulating Fla. Bar 4-7.19(a).
16
R. Regulating Fla. Bar 4-7.19(b).
17
R. Regulating Fla. Bar 4-7.19(f)-(g).
18 R. Regulating Fla. Bar 4-7.12(a)(1)-(2).
19
R. Regulating Fla. Bar 4-7.12(b).
20
R. Regulating Fla. Bar 4-7.12(c).
21
R. Regulating Fla. Bar 4-7.12(d).
BILL: SB 1246 Page 4
advertising firm, or use a dramatization of an actual or fictitious event, unless certain clarifying
disclosures are made.22
Florida Deceptive and Unfair Trade Practices Act
History and Purpose
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) became law in 1973.23 The
FDUTPA is a consumer and business protection measure that prohibits unfair methods of
competition, unconscionable acts or practices, and unfair or deceptive acts or practices in trade or
commerce.24 The FDUTPA is based on federal law, and s. 501.204(2), F.S., provides that it is the
intent of the Legislature that due consideration and great weight must be given to the
interpretations of the Federal Trade Commission and the federal courts relating to section 5 of
the Federal Trade Commission Act.25
The State Attorney or the Department of Legal Affairs may bring actions when it is in the public
interest on behalf of consumers or governmental entities.26 The Office of the State Attorney may
enforce violations of the FDUTPA if the violations take place in its jurisdiction.27 The
Department of Legal Affairs has enforcement authority if the violation is multi-jurisdictional, the
state attorney defers in writing, or the state attorney fails to act within 90 days after a written
complaint is filed.28 Consumers may also file suit through private actions.29
Remedies under the FDUTPA
The Department of Legal Affairs and the State Attorney, as enforcing authorities, may seek the
following remedies:
Declaratory judgments.
Injunctive relief.
Actual damages on behalf of consumers and businesses.
Cease and desist orders.
Civil penalties of up to $10,000 per willful violation.30
Remedies for private parties are limited to the following:
A declaratory judgment and an injunction where a person is aggrieved by a FDUTPA
violation.
22
R. Regulating Fla. Bar 4-7.13(b)(5)-(g).
23
Ch. 73-124, Laws of Fla.; codified at part II of ch. 501, F.S.
24
See s. 501.202, F.S. Trade or commerce means the advertising, soliciting, providing, offering, or distributing, whether by
sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article,
commodity, or thing of value, wherever situated. “Trade or commerce” shall include the conduct of any trade or commerce,
however denominated, including any nonprofit or not-for-profit person or activity. See s. 501.203(8), F.S.
25
See s 501.204(2), F.S.
26
See ss. 501.203(2), 501.206, and 501.207, F.S.
27
Section 501.203(2), F.S.
28
Id.
29
Section 501.211, F.S.
30
Sections 501.207(1), 501.208, and 501.2075, F.S. Civil Penalties are deposited into general revenue. Section 501.2075,
F.S. Enforcing authorities may also request attorney fees and costs of investigation or litigation. Section 501.2105, F.S.
BILL: SB 1246 Page 5
Actual damages, attorney fees, and court costs, where a person has suffered a loss due to a
FDUTPA violation.31
Federal Unfair and Deceptive Trade Practices
The Federal Trade Commission’s unfair and deceptive trade practices regulations prohibit
unfair32 or deceptive33 acts or practices in or affecting commerce.34 The FTC’s regulations
include “Truth In Advertising” guidelines, which require advertisements to be truthful, not
misleading, and when appropriate, backed by scientific evidence.35 To enforce these regulations,
the FTC takes law enforcement actions, provides consumer and business education, issues
reports and policy guidance, leads workshops, and participates in other forums.36
III. Effect of Proposed Changes:
SB 1246 creates s. 501.139, F.S., to regulate certain advertisements soliciting clients for personal
injury lawsuits against drug manufacturers. The bill contains provisions that are similar to ones
already enacted in West Virginia, Texas, and Tennessee to combat misleading advertisements for
legal services.
Definitions
The bill defines “advertisement for legal services” to mean any representation disseminated in
any manner through a media entity for the purpose of soliciting prospective clients for legal
services. The term includes such solicitation by a person with the intent to transfer data obtained
from the consumer to one or more attorneys for legal services.
The bill defines “media entity” to mean a radio broadcast station, a television broadcast station, a
cable television company, a newspaper company, a periodical company, a billboard company, an
advertising agency, a digital media platform, or a bona fide news or public interest website
operator.
31
Section 501.211(1) and (2), F.S.
32
A practice is “unfair” if it “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by
consumers themselves and not outweighed by countervailing benefits to consumers or to competition.” See 15 U.S.C. s.
45(n).
33
A practice is “deceptive” if there is a “representation, omission or practice that is likely to mislead the consumer acting
reasonably in the circumstances, to the consumer’s detriment.” FTC Policy Statement on Deception (Oct. 14, 1983),
available at https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf; (last visited
April 3, 2023) see also Federal Trade Commission, A Brief Overview of the Federal Trade Commission's Investigative, Law
Enforcement, and Rulemaking Authority (rev. May 2021), available at https://www.ftc.gov/about-ftc/what-we-
do/enforcement-authority (citing the FTC’s Policy Statement on Deception) (last visited April 3, 2023).
34
15 U.S.C. s. 45(a)(1).
35
Federal Trade Commission, Truth In Advertising, available at https://www.ftc.gov/news-events/media-resources/truth-
advertising (last visited April 3, 2023).
36
Federal Trade Commission, Protecting Consumers, available at https://www.ftc.gov/news-events/media-resources/truth-
advertising/
protecting-consumers (last visited April 3, 2023).
BILL: SB 1246 Page 6
The bill defines “protected health information”37 as meaning individually identifiable health
information transmitted by, or maintained in, electronic media, or transmitted or maintained in
any other form or medium, except for information:
In education records covered by the Family Educational Rights and Privacy Act, as
amended.38
In records described in federal law.39
In employment records held by a covered entity in its role as employer.
Regarding a person who has been deceased for more than 50 years.
The bill defines “solicit” to mean attempting to procure a client for legal services by initiating
unsolicited personal, telephone, or real-time electronic contact or by advertising such services
through print media, video or audio recorded advertisements, or electronic communications.
Prohibitions
The bill provides that a person or an entity that issues an advertisement for legal services may
not do any of the following:
Present the advertisement as a medical alert, health alert, drug alert, or public service
announcement or use any substantially similar phrase that suggests t