RÉSUMÉ DIGEST
SB 43 2021 Regular Session Peacock
Present law provides relative to the Unfair Trade Practices and Consumer Protection Law
and penalties for violating that law.
Proposed law would provide relative to the advertisement of certain legal services.
Proposed law would define "advertisement for legal services" as a solicitation for legal
services through a media entity. The term would include solicitation through such media
entity by a person with the intent to transfer data obtained from the consumer to one or more
attorneys for legal services.
Proposed law would define "media entity" as a radio broadcast station, television broadcast
station, cable television company, newspaper company, periodical company, billboard
company, advertisement agency, media platform, or bona fide news or public interest
website operator.
Proposed law would prohibit an advertisement from doing any of the following:
(1) Presenting the advertisement as a medical alert, health alert, drug alert, public service
announcement, or substantially similar phrase that suggests to a viewer the
advertisement is offering professional, medical, or government agency advice about
any medication or medical device rather than legal services.
(2) Displaying the logo of a federal or state government agency in a manner that
suggests to a viewer the advertisement is presented by a federal or state government
agency or by an entity approved by or affiliated with a federal or state agency.
(3) Using the term "recall" when referring to a product that has not been recalled by a
government agency or through an agreement between a manufacturer and
government agency.
Proposed law would require an advertisement for legal services soliciting a client who may
allege injury from a prescription drug or medical device approved by the United States Food
and Drug Administration (FDA) to state the following items:
(1) "This is a paid advertisement for legal services." This statement shall appear at the
beginning of the advertisement.
(2) The identity of the sponsor of the advertisement.
(3) Either the identity of the attorney or law firm primarily responsible for providing
solicited legal services to a person who engages the attorney or law firm in response
to the advertisement or how a responding person's case is referred to an attorney or
law firm if the sponsor of the advertisement is not legally authorized to provide legal
services.
(4) The drug or medical device remains approved by the FDA, unless the drug or
medical device has been recalled by a government agency or through an agreement
between a manufacturer and a government agency.
Proposed law would require an advertisement soliciting a client who may allege an injury
from a prescription drug approved by the FDA to include the statement: "Consult your
physician before making decisions regarding prescribed medication or medical treatment."
Proposed law would provide that the required statements shall be in written and verbal
formats, except:
(1) If the advertisement is in print format only, the statements shall be in writing.
(2) If the advertisement is in audible format only, the statements shall be made verbally.
Proposed law would provide that if the Rules of Professional Conduct Committee or any
designated subcommittee of the La. State Bar Association reviews an advertisement for legal
services for compliance before the first dissemination of the advertisement and informs the
sponsor of the advertisement that the advertisement is in compliance with the provisions and
applicable advertising standards provided in the Rules of Professional Conduct, no person
may pursue an action under proposed law.
Proposed law would provide that if an advertisement has not been reviewed by the Rules of
Professional Conduct Committee or any designated subcommittee of the La. State Bar
Association an individual may pursue a cause of action under the Unfair Trade Practices and
Consumer Protection Law.
Proposed law would not apply to any media entity responsible for the production or
publication of any advertisement found to be in violation of proposed law.
Proposed law would provide that the carriage, distribution, transmission, or display of any
advertisement by a media entity shall not be considered a violation of proposed law.
Proposed law would prohibit a person from using, causing to be used, obtaining, selling,
transferring, or disclosing protected health information to another person for the purpose of
soliciting an individual for legal services without written authorization from the individual
who is the subject of the information. Proposed law would not apply to the use of disclosure
of protected health information to an individual's legal representative in the course of any
judicial or administrative proceeding or as otherwise permitted or required by law.
A violation of proposed law would be a deceptive and unfair trade practice and subject the
violator to all penalties provided in the Unfair Trade Practices and Consumer Protection
Law.
Proposed law would not limit or affect the authority of the Louisiana Supreme Court to
regulate the practice of law, enforce the Rules of Professional Conduct, or discipline any
person admitted to the state bar.
Would have become effective August 1, 2021.
(Proposed to add R.S. 51:3221-3223)
VETO MESSAGE: "Please be advised that I have vetoed Senate Bill 43 of the 2021
Regular Session.
I have vetoed this bill for the same reasons that I vetoed Senate Bill 395 from the
2020 Regular Session, a very similar bill to Senate Bill 43 (see attached). Senate Bill 43 is
likely unconstitutional in that it vests regulation of attorney advertising with the legislature
and the Attorney General rather than the Louisiana Supreme Court. I did sign into law
Senate Bill 115 of the 2020 Regular Session on this same issue, and the Louisiana Supreme
Court published rules regarding regulation of attorney advertising just last month. Those
rules can be found at https:/www.lasc.org/press room/press releases/2021/2021-14-Order
Amending LA Professional rules of Conduct Attorney Advertising Rules.pdf. Should
additional changes be needed in the area of attorney advertising, it should be done by the
Louisiana Supreme Court in a manner consistent with the Louisiana and United States
constitutions."