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 Judiciary
BILL: SB 1992
INTRODUCER: Senator Harrell
SUBJECT: Solicitation of Nonmedical Services
DATE: March 26, 2021 REVISED: 03/29/21
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. McMillan McKay CM Favorable
2. Davis Cibula JU Pre-meeting
3. RC
I. Summary:
SB 1992 defines what a deceptive and unfair trade practice act is when it involves a paid
solicitation for nonmedical professional services, including legal services, regarding a drug or
medical device.
The bill creates s. 501.2106, F.S., which provides that it is a deceptive and unfair trade practice
for a person to submit or approve the submittal of a solicitation for nonmedical professional
services for publication, broadcast, or dissemination, or to pay for or otherwise sponsor a
nonmedical solicitation if the solicitation meets or fails to meet specified criteria, including the
following:
Fails to clearly disclose the phrase, “this is a paid advertisement for nonmedical services” at
the outset of the solicitation;
Includes terminology implying that the advertisement is a public alert or announcement;
Displays a logo in a manner implying affiliation with a governmental agency;
Includes terminology implying that the product has been recalled when it has not been
recalled;
Fails to clearly disclose who the sponsor is of the advertisement;
Fails to clearly disclose the individual or entity that will provide professional services to the
person who responds to the advertisement; or
Fails to include any additional required disclosures.
The bill also creates s. 877.025, F.S., which provides that a person who solicits professional
services may not use, cause to be used, obtain, sell, transfer, or disclose to another person an
individual’s protected health information, without the individual’s written authorization. The bill
provides first degree misdemeanor and a second degree felony penalties for these violations,
depending on the circumstances, and subjects the perpetrator to the penalties and remedies of the
Deceptive and Unfair Trade Practices Act.
BILL: SB 1992 Page 2
Except as otherwise provided, the bill takes effect July 1, 2021.
II. Present Situation:
Attorney Advertising Seeking Plaintiffs against Pharmaceutical Companies
The television advertisements that attorneys use to find personal injury clients has generated
concerns at the federal level. In 2019, the Federal Trade Commission (FTC) contacted seven law
firms and lead generating companies to express concerns 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.” The warning letters also stated that some of the ads
might misrepresent the risks associated with certain medications and could lead consumers to the
false conclusion that their prescribed medication had been recalled.1
The FTC also noted that the Food and Drug Administration’s (FDA) 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.2 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.3
In 2020, a Congressman asked the Chairman of the FTC for a progress report on the effects of
the seven warning letters issued in 2019. 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. These state laws contain provisions similar to
this bill.4
Florida Deceptive and Unfair Trade Practices Act (FDUTPA)
History and Purpose of FDUTPA
The Florida Deceptive and Unfair Trade Practices Act (FDUTPA) became law in 1973.5 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
1 Federal Trade Commission, FTC Flags Potentially Unlawful TV Ads for Prescription Drug Lawsuits (September 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
Mar. 19, 2021).
2 Id.
3 Id.
4
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, November 17, 2020 available at http://republicans-
energycommerce.house.gov/wp-content/uploads/2020/11/2020.11.17-FTC-to-Rep.-Walden-Lawyer-Ads-.pdf
5
Chapter 73-124, Laws of Fla., codified at part II of ch. 501, F.S.
BILL: SB 1992 Page 3
commerce.6 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 be given to the interpretations of
the Federal Trade Commission and the federal courts relating to section 5 of the Federal Trade
Commission Act.7
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.8 The Office of the State Attorney may
enforce violations of the FDUTPA if the violations take place in its jurisdiction.9 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.10 Consumers may also file suit through private actions.11
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;
An action for actual damages on behalf of consumers and businesses;
Cease and desist orders; and
Civil penalties of up to $10,000 per willful violation.12
Remedies for private parties are limited to the following:
A declaratory judgment and an injunction where a person is aggrieved by a FDUTPA
violation; and
The recovery of actual damages, attorney fees and court costs, where a person has suffered a
loss due to a FDUTPA violation.13
6
See s. 501.203, 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.
7
See s. 501.204(2), F.S.
8
See ss. 501.203(2), 501.206, and 501.207, F.S.
9
Section 501.203(2), F.S.
10
Id.
11
Section 501.211, F.S.
12
Sections 501.207(1), 501.208, and 501.2075, F.S. Civil Penalties are deposited into general revenue. Enforcing authorities
may also request attorney fees and costs of investigation or litigation. Section 501.2105, F.S.
13
Section 501.211(1) and (2), F.S.
BILL: SB 1992 Page 4
Federal Unfair and Deceptive Trade Practices
The Federal Trade Commission’s (FTC’s) unfair and deceptive trade practices regulations
prohibit unfair14 or deceptive15 acts or practices in or affecting commerce.16 The FTC’s
regulations include “Truth In Advertising” guidelines, which require advertisements to be
truthful, not misleading, and when appropriate, backed by scientific evidence.17 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.18
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. The
Florida Bar approves lawyer advertising, issues advisory opinions interpreting rules, and
investigates and prosecutes attorneys for alleged violations.19 Florida’s legal advertising rules
apply to all forms of communication soliciting legal services in any print or electronic form.20
Advertisements in specified media must be submitted to the Legal Division of The Florida Bar at
least 20 days prior to dissemination, including print, television, radio, direct mail, and Internet. 21
The Legal Division reviews an advertisement to determine whether it complies with The Florida
Bar’s advertising rules, and issues an opinion either approving or disapproving the
advertisement. The Disciplinary Counsel of The Florida Bar investigates and prosecutes
attorneys for alleged violations of the advertising rules.22
The Florida Bar rules require legal advertising to include:
The name of the lawyer or law firm;23
The location of the law practice;24 and
14
An “unfair” 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).
15
A “deceptive” practice involves a material representation, omission or practice that is likely to mislead a consumer acting
reasonably in the circumstances. See FTC Policy Statement on Deception (October 14, 1983), available at
https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf (last visited Mar. 26, 2021).
See also Federal Trade Commission, A Brief Overview of the Federal Trade Commission’s Investigative, Law Enforcement,
and Rulemaking Authority (revised, October 2019), available at https://www.ftc.gov/about-ftc/what-we-do/enforcement-
authority (last visited Mar. 26, 2021).
16
15 U.S.C. s. 45(a)(1).
17
Federal Trade Commission, Truth In Advertising, available at https://www.ftc.gov/news-events/media-resources/truth-
advertising (last visited Mar. 26, 2021).
18
Federal Trade Commission, Protecting Consumers from Fraud and Deception, available at https://www.ftc.gov/news-
events/media-resources/truth-advertising/protecting-consumers (last visited Mar. 26, 2021).
19 The Florida Bar, Frequently Asked Questions About the Florida Bar, available at https://www.floridabar.org/about/faq/ (last visited
Mar. 26, 2021).
20 Fla. Bar Code Prof. Resp. D. R. 4-7.11(a).
21 Fla. Bar Code Prof. Resp. D. R. 4-7.11.
22 Fla. Bar Code Prof. Resp. D. R. 4-7.19.
23 Fla. Bar Code Prof. Resp. D. R. 4-7.12(a)(1).
24 Fla. Bar Code Prof. Resp. D. R. 4-7.12(a)(2).
BILL: SB 1992 Page 5
Certain disclosures when relevant, including whether a case will be referred to another
lawyer;25 clarification as to whether a spokesperson in the advertisement is an employee or
member of the law firm;26 clarification as to whether a scene depicted is a dramatization and
not an actual event.27
Required information must be reasonably prominent and clearly legible if written, as well as,
clearly audible if spoken aloud.28
Health Insurance Portability and Accountability Act29 and its Related Rules
The Federal Health Insurance Portability and Accountability Act (HIPAA), protects sensitive
personal health information (PHI) from being disclosed without a patient’s knowledge or
consent.30 HIPPA’s two pertinent implementing rules are the Privacy Rule and the Security
Rule.31 The Privacy Rule addresses the use and disclosure of an individual’s PHI by covered
entities.32 Covered entities include the following:
Health plans;
Health care providers;
Health care clearinghouses; and
Business associates of any of the above.33
A common example of PHI is a patient’s name, address, birth date, or social security number.
However, PHI does not include de-identified health information or employment-related records.
The Privacy Rule protects PHI that is held or transmitted by a covered entity or its business
associate by preventing covered entities from disclosing PHI without the patient’s consent or
knowledge unless it is being used or shared for treatment, payment, or healthcare operations or
for another exempt purpose.
The Privacy Rule also requires covered entities to prominently post an electronic notice and give
notice upon a specific request to patients regarding the manner in which it may use and disclose
PHI. A covered entity must also provide an accounting of disclosures it has made of a patient’s
PHI upon his or her request as well as a copy of his or her PHI.
25 Fla. Bar Code Prof. Resp. D. R. 4-7.12(b).
26 Fla. Bar Code Prof. Resp. D. R. 4-7.13(b)(5).
27 Fla. Bar Code Prof. Resp. D. R. 4-7.13(b)(6).
28 Fla. Bar Code Prof. Resp. D. R. 4-7.12(d).
29
42 U.S.C. s. 1320.
30Protected health information includes all individually identifiable health information held or transmitted by a covered entity or its
business associate. Pub. Law No. 104-191 (1996).See also Centers for Disease Control and Prevention, Health Insurance Portability and
Accountability Act of 1996 (HIPAA) available at https://www.cdc.gov/phlp/publications/topic/hipaa.html.
31
See Stephen Mulligan, Wilson Freeman, Chris Linebaugh, Congressional Research Service, Data Protection Law: An
Overview at 10-12 (March 25, 2019), available at https://crsreports.congress.gov/product/pdf/R/R45631 (last visited Mar 26,
2021).
32
45 C.F.R. s.160 and 164. See also, Department of Health and Human Services, Summary of the HIPPA Privacy Rule
(July 26, 2013), available at https://www.hhs.gov/hipaa/for-professionals/privacy/laws-regulations/index.html (last visited
Mar. 26, 2021).
33
U.S. Department of Health and Human Services, Office for Civil Rights, Summary of the HIPAA Privacy Rule, (last
revised May 2003), available at https://www.hhs.gov/sites/default/files/privacysummary.pdf. (last visited Mar. 26, 2021).
BILL: SB 1992 Page 6
The Security Rule applies to the subset of identifiable health information that a covered entity
creates, receives, maintains, or transmits in electronic form called “electronic protected health
information” (e-PHI).34 The Security Rule does not apply to PHI that is transmitted orally or in
writing. A covered entity must comply with the Security Rule by:
Ensuring the confidentiality, integrity, and availability of all electronic protected health
information;
Detecting and safeguarding against anticipated threats to the security of the information;
Protecting against anticipated impressible uses or disclosures; and
Certifying compliance by their workforce.35
The Department of Health and Human Services may institute a civil enforcement under HIPPA
and may seek civil penalties. A civil penalty varies based on the severity of the violation, the
number of people affected, the nature of the data exposed, the length of time a violation was
allowed to persist, the prior compliance history of the covered entity, and the knowledge the
covered entity had of the violation.36 The Department of Justice may institute criminal
proceedings against a violator who knowingly obtained or disclosed PHI. Criminal penalties for
a HIPAA violation are triggered when a person obtains PHI for financial gain or under false
pretenses.37 The criminal penalty for suc