Steven Recht v. Patrick Morrisey

32 F.4th 398

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 27, 2022
• Docket: 21-1684
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 21-1684

STEVEN M. RECHT; ALESHA BAILEY; STEPHEN P. NEW,

Plaintiffs – Appellees,

v.

PATRICK MORRISEY, in his capacity as Attorney General of the State of West Virginia,

Defendant – Appellant,

and

JIM JUSTICE, in his official capacity as Governor of West Virginia,

Defendant.

------------------------------

CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA; ALLIANCE FOR PATIENT ACCESS; WEST VIRGINIA STATE MEDICAL ASSOCIATION,

Amici Supporting Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Wheeling. John Preston Bailey, District Judge. (5:20-cv-00090-JPB)

Argued: March 10, 2022 Decided: April 27, 2022 Before WILKINSON and DIAZ, Circuit Judges, and FLOYD, Senior Circuit Judge

Reversed and remanded with directions to dismiss by published opinion. Judge Wilkinson wrote the opinion, in which Judge Diaz and Senior Judge Floyd joined.

ARGUED: Lindsay Sara See, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellant. Elbert Lin, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Amicus Curiae. Robert S. Peck, CENTER FOR CONSTITUTIONAL LITIGATION, PC, Washington, D.C., for Appellees. ON BRIEF: Patrick Morrisey, Attorney General, Curtis R.A. Capehart, Deputy Attorney General, Caleb A. Seckman, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellant. Scott S. Segal, Robin Jean Davis, THE SEGAL LAW FIRM A LEGAL CORPORATION, Charleston, West Virginia, for Appellees. J. Mark Adkins, BOWLES RICE LLP, Charleston, West Virginia, for Amici The Alliance for Patient Access and West Virginia State Medical Association. Andrew R. Varcoe, Stephanie A. Maloney, UNITED STATES CHAMBER LITIGATION CENTER, Washington, D.C.; J. Pierce Lamberson, HUNTON ANDREWS KURTH LLP, Richmond, Virginia, for Amicus Chamber of Commerce of the United States of America.

2 WILKINSON, Circuit Judge:

West Virginia by statute regulates legal advertisements that solicit clients in

litigation involving medications or medical devices. The plaintiffs in this case, two West

Virginia attorneys and a client, contend that the statute violates the First Amendment by

prohibiting attorneys from using certain terms or images in their advertisements and by

requiring such advertisements to include certain disclosures. The district court agreed,

granting summary judgment to the plaintiffs.

We now reverse the district court and uphold West Virginia’s law. This statute lies

right at the heart of West Virginia’s police power. If West Virginia has one premier duty,

it is to safeguard the health and safety of its citizens. And while the State certainly may not

abridge basic constitutional protections in exercising that police power, the Supreme Court

has long made clear that the regulation of commercial speech invokes lessened First

Amendment concerns. In this area, we accord the State some, though not infinite, leeway

in balancing the important state interests against the individual rights involved.

The district court did not afford the State that leeway. It applied strict scrutiny to the

statute’s prohibitions, even though regulations of commercial speech have long received

intermediate scrutiny. And while the district court correctly noted that an even more

deferential standard applies to the statute’s disclosure requirements, it gave the State little

deference when it applied that standard. Applying the correct standards with appropriate

deference, we hold that the statute does not violate the First Amendment, and that the case

must therefore be dismissed.

3 I.

A.

In March 2020, West Virginia passed the Prevention of Deceptive Lawsuit

Advertising and Solicitation Practices Regarding the Use of Medications Act. See W. Va.

Code §§ 47-28-1 et seq. The Act is designed to regulate legal advertisements, i.e. the ads

that attorneys use to solicit plaintiffs in litigation stemming from the use of medications or

medical devices. It serves to ensure that such advertisements do not mislead or confuse the

public.

The statute applies to advertisements that constitute “a solicitation for legal services

regarding the use of medications through television, radio, newspaper or other periodical,

outdoor display, or other written, electronic, or recorded communications wherein the

advertisement solicits clients or potential clients for legal services.” Id. § 47-28-2(1). The

statute regulates such advertisements in two ways: by prohibiting certain terms or images

that may mislead the public, and by requiring certain disclosures to prevent confusion and

protect public health.

The Act’s prohibitions target attorney advertisements that give the false impression

that they reflect medical or governmental advice. So the statute prohibits attorneys from

“[p]resent[ing]” an advertisement as a “consumer medical alert,” “health alert,” “consumer

alert,” or “public service health announcement” so as to suggest “to a reasonable recipient

that the advertisement is offering professional, medical, or government agency advice

about pharmaceuticals or medical devices rather than legal services.” Id. § 47-28-3(a)(2).

Similarly, an advertisement may not display “the logo of a federal or state government

4 agency in a manner that suggests affiliation with the sponsorship of that agency.” Id. § 47-

28-3(a)(3). And a third prohibition operates to make sure that attorney advertisements do

not provide misleading information about the status of medications by preventing

advertisements from using “the word ‘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.” Id. § 47-28-3(a)(4).

The Act’s disclosure requirements likewise aim to prevent attorney advertisements

from confusing or misleading the audience. Several disclosure requirements, which

plaintiffs do not challenge here, serve to make clear that attorney advertisements are just

that—attorney advertisements. For instance, advertisements must state that they are “a paid

advertisement for legal services,” must identify their sponsor, and must indicate the identity

of the attorney or law firm that would represent clients. Id. § 47-28-3(a)(1), (5), (6).

Two other disclosure requirements, which plaintiffs do challenge, ensure that

attorney advertisements do not give patients the mistaken impression that they should

suddenly stop using prescription drugs or medical devices. These requirements apply only

to advertisements made “in connection with a prescription drug or medical device approved

by the U.S. Food and Drug Administration.” Id. § 47-28-3(b)(1), (b)(2). Such

advertisements must include the warning: “Do not stop taking a prescribed medication

without first consulting with your doctor. Discontinuing a prescribed medication without

your doctor’s advice can result in injury or death.” Id. § 47-28-3(b)(1). They must also

“disclose that the subject of the legal advertisement remains approved by the U.S. Food

5 and Drug Administration, unless the product has been recalled or withdrawn.” Id. § 47-28-

3(b)(2).

Any person who “willfully and knowingly” violates the Act is deemed to have

engaged in an unfair or deceptive act or practice in violation of the West Virginia Consumer

Credit and Protection Act. Id. § 47-28-3(d).

B.

In May 2020, two personal injury attorneys, Steven M. Recht and Stephen P. New,

as well as one of New’s clients, Alesha Bailey, filed suit against the Attorney General of

West Virginia. They alleged that the Act was unconstitutional and sought injunctive and

declaratory relief under 42 U.S.C. § 1983.

Following discovery, plaintiffs moved for summary judgment on the grounds that

the Act violated the First Amendment. The district court granted that motion. It first

determined that the Act imposed “a specific content-based burden on protected

expression.” J.A. 225. While West Virginia contended that strict scrutiny was inapplicable,

the district court found this argument “to be foreclosed” in light of Barr v. American Ass’n

of Political Consultants, 140 S. Ct. 2335 (2020). J.A. 227 (also quoting Reed v. Town of

Gilbert, 576 U.S. 155, 165 (2015) (“A law that is content based on its face is subject to

strict scrutiny.”)). It therefore decided to “apply strict scrutiny, but note[d] that even were

the Court to apply intermediate scrutiny, the [Act’s] restrictions cannot pass muster.” J.A.

230.

Applying strict scrutiny, the district court enjoined the Act’s recall provision

because it thought a truthful description of a voluntary recall would violate the Act and

6 because it concluded that such a description could not mislead consumers. It next found

the Act’s consumer alert provision unconstitutional, concluding that the “handful of

investigations and reports” proffered by the State could not justify the provision—and that

even if they could, the State had no authority to “censor under the First Amendment based

on a ‘fear that people would make bad decisions if given truthful information.’” J.A. 231

(quoting Sorrell v. IMS Health Inc., 564 U.S. 552, 577 (2011)). Though the district court

did not specifically address the Act’s logo provision, it permanently enjoined that provision

as well. And it finally suggested that the State had failed to consider less restrictive

alternatives, as required for a statute to survive strict scrutiny. J.A. 232.

As to the disclosure provisions, the district court noted that “compelled disclosure

of commercial speech complies with the First Amendment if the information in the

disclosure is reasonably related to a substantial governmental interest and is purely factual

and uncontroversial.” J.A. 233 (quoting CTIA - The Wireless Ass’n v. City of Berkeley, 928

F.3d 832, 845 (9th Cir. 2019)). Nonetheless, it held that the disclosure provisions were

invalid. The provision which states that a patient should not stop taking medications

without a doctor’s advice, qualified in the district court’s view as “more professional advice

and opinion” than as purely factual and uncontroversial matter. J.A. 234. Likewise, it

determined that the second disclosure, which states that an FDA-approved drug or medical

device remains approved by the FDA, was “not reasonably related to the State’s interest,”

given that opioids remain approved by the FDA and that there was “little State interest in

informing the public of that fact in light of the present opioid crisis.” J.A. 234.

7 The district court permanently enjoined and prohibited West Virginia from

enforcing the prohibitions contained in the Act as well as the disclosure requirements

challenged by plaintiffs. West Virginia now appeals and we review a grant of summary

judgment de novo.

II.

We start with the Act’s prohibitions. For almost two centuries, commercial speech,

i.e. “expression related solely to the economic interests of the speaker and its audience,”

Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561 (1980), was

understood to fall outside of the First Amendment’s ambit. See, e.g., Valentine v.

Chrestensen, 316 U.S. 52, 54 (1942); Breard v. City of Alexandria, 341 U.S. 622, 642–43

(1951). That all changed in 1976, when the Supreme Court extended the First

Amendment’s protections to such speech in Virginia State Board of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748, 761–62 (1976). Just four years later,

Central Hudson set out the governing framework for analyzing commercial speech

restrictions. See 447 U.S. at 561–66.

In doing so, Central Hudson recognized that the First Amendment “accords a lesser

protection to commercial speech than to other constitutionally guaranteed expression.” Id.

at 563. Subsequent cases have continued to make this distinction, noting commercial

speech’s “subordinate position in the scale of First Amendment values” and the

government’s correspondingly “ample scope of regulatory authority” in the commercial

speech realm. Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477 (1989) (citation

omitted). So the Supreme Court has “always been careful to distinguish commercial speech

8 from speech at the First Amendment’s core.” Fla. Bar v. Went For It, Inc., 515 U.S. 618,

623 (1995).

Because of its subsidiary status, commercial speech can be subjected to “modes of

regulation that might be impermissible in the realm of noncommercial expression.” Fox,

492 U.S. at 477 (citation omitted). For instance, “there can be no constitutional objection

to the suppression of commercial messages that do not accurately inform the public about

lawful activity.” Central Hudson, 447 U.S. at 563. Strict scrutiny is therefore improper

when reviewing laws that regulate commercial speech. Instead, we apply the following

four-part intermediate-scrutiny analysis from Central Hudson:

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Id. at 566. These four parts are “not entirely discrete”; they are all “important and, to a

certain extent, interrelated,” as “the answer to [one part] may inform a judgment concerning

the other three.” Greater New Orleans Broad. Ass’n v. United States, 527 U.S. 173, 183–

84 (1999). For more than four decades, this has been the governing test for regulations of

commercial speech. And “[i]t is now well established that lawyer advertising is commercial

speech.” Fla. Bar, 515 U.S. at 623.

Notwithstanding the Supreme Court’s well-settled precedent, the district court

applied strict scrutiny to the Act’s prohibitions. Employing the proper framework for

commercial speech—that of Central Hudson—we conclude that the Act’s prohibitions

9 present no constitutional problem. The Act targets misleading speech and furthers

substantial government interests in an appropriately tailored manner.

The standard of review in this case is critical. The district court, as noted, decided

to “apply strict scrutiny” to the West Virginia statute. J.A. 230. In so doing it relied

primarily on a line of Supreme Court cases, beginning with Sorrell, stating that content-

based laws are subject to strict scrutiny. Because of that baseline, it saw no need to analyze

the Act under Central Hudson. But each of these cases arose in a different context, and

none of them purport to displace commercial speech doctrine. So we must follow Central

Hudson here. We leave to the Supreme Court “the prerogative of overruling its own

decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989).

The district court missed the import of the cases it quoted. Begin with Sorrell, which

stated that “[i]n the ordinary case it is all but dispositive to conclude that a law is content

based and, in practice, viewpoint discriminatory.” 564 U.S. at 571; see J.A. 225. Yet this

line must be placed within the larger context. To start, the State in Sorrell—unlike West

Virginia here—did not contend that “the provision challenged” would “prevent false or

misleading speech.” Sorrell, 564 U.S. at 579. But even more fundamentally, Sorrell itself

applied the Central Hudson framework to a concededly “content-based law.” Id. at 571.

Instead of examining whether the law was the least restrictive means to further a

compelling governmental interest (which would have been classic strict scrutiny language),

the Court required the State to show “that the statute directly advances a substantial

governmental interest and that the measure is drawn to achieve that interest”—and it

10 explicitly cited Central Hudson for this proposition. Id. at 572 (citing 447 U.S. at 566). It

is difficult to imagine that the Supreme Court, in consciously relying on Central Hudson,

was actually overruling it.

Reed also generally stated that “[a] law that is content based on its face is subject to

strict scrutiny.” 576 U.S. at 165; see J.A. 227. However, Reed involved a sign code that

regulated non-commercial speech. See 576 U.S. at 159–61 (discussing ideological signs,

political signs, and signs directing the public to nonprofit gatherings). Indeed, that case

concerned political speech at the heart of the First Amendment, so it never needed to

mention commercial speech or any precedents in that vein. Rather than overruling long-

settled precedent, Reed simply concerned a totally different context; it cannot be distorted

to so unsettle the Central Hudson regime. After all, the Supreme Court “does not normally

overturn, or so dramatically limit, earlier authority sub silentio.” Shalala v. Ill. Council on

Long Term Care, Inc., 529 U.S. 1, 18 (2000).

Finally, Barr does not suggest otherwise or “foreclose[]” the application of

intermediate scrutiny. J.A. 227. While Barr did broadly state that “[c]ontent-based laws

are subject to strict scrutiny,” 140 S. Ct. at 2346, it also distinguished “impermissible

content-based speech restrictions from traditional or ordinary economic regulation of

commercial activity that imposes incidental burdens on speech,” id. at 2347. And Barr

explicitly warned that it was not seeking to upset the First Amendment apple cart. Id. (“Our

decision is not intended to expand existing First Amendment doctrine or to otherwise affect

traditional or ordinary economic regulation of commercial activity.”).

11 Far from overruling Central Hudson, the Supreme Court has again and again

indicated that it remains good law. Our court has continued to recognize as much, even

after Sorrell. See, e.g., Stuart v. Camnitz, 774 F.3d 238, 244 (4th Cir. 2014) (citing Central

Hudson for the proposition that commercial speech receives a lower level of review);

Fusaro v. Cogan, 930 F.3d 241, 249 (4th Cir. 2019) (citing Stuart for the same). Other

circuits likewise continue to follow Central Hudson. See, e.g., Greater Phila. Chamber of

Com. v. City of Philadelphia, 949 F.3d 116, 138 (3d Cir. 2020) (“[T]he Supreme Court has

consistently applied intermediate scrutiny to commercial speech restrictions, even those

that were content- and speaker-based.”); Vugo, Inc. v. City of New York, 931 F.3d 42, 50

(2d Cir. 2019) (“Sorrell leaves the Central Hudson regime in place.”); Retail Digit.

Network, LLC v. Prieto, 861 F.3d 839, 841 (9th Cir. 2017) (en banc) (“Sorrell did not

modify the Central Hudson standard.”).

To be clear: Commercial speech regulations are analyzed under Central Hudson.

Begrudgingly acknowledging this reality, plaintiffs try to suggest that the standard of

review does not matter here. In support, they cite Sorrell’s statement that “the outcome is

the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny

is applied.” 564 U.S. at 571. Crucially, though, the Supreme Court in Sorrell applied

intermediate scrutiny in finding the law at issue unconstitutional, while the district court in

this case applied strict scrutiny. As intermediate scrutiny is “less onerous” than strict

scrutiny, and strict scrutiny is the “most demanding test known to constitutional law,”

Kolbe v. Hogan, 849 F.3d 114, 133 (4th Cir. 2017) (en banc), the Supreme Court in Sorrell

could rightly say that a law failing intermediate scrutiny would also fail strict scrutiny.

12 After all, if you can’t ski a blue run successfully, you obviously can’t tackle a double black

diamond. Yet failing to navigate a treacherous course does not imply an inability to handle

a gentler slope. Likewise, that a statute fails strict scrutiny means little for how it would

fare under a more lenient intermediate standard. Because the district court applied only the

most demanding test here, plaintiffs’ argument reflects a misunderstanding as to how

standards of review are meant to operate.

Applying Central Hudson’s framework, we conclude that the Act’s prohibitions

survive constitutional scrutiny. The Act’s three prohibitions target misleading speech, West

Virginia has substantial interests in protecting public health and in preventing deception,

and the Act advances these interests in a narrowly tailored and reasonable way.

1.

First, we must consider whether the Act regulates misleading speech. Central

Hudson, 447 U.S. at 566. If advertising is misleading, it “may be prohibited entirely.” In

re R. M. J., 455 U.S. 191, 203 (1982). Supreme Court cases “make clear that the State may

ban commercial expression that is fraudulent or deceptive without further justification.”

Edenfield v. Fane, 507 U.S. 761, 768 (1993). Unquestionably, the State “may impose

appropriate restrictions” on “particular content or method[s] of advertising” that are either

“inherently” or “in fact” misleading. In re R. M. J., 455 U.S. at 203. So at this step, we ask

whether the regulated speech is inherently misleading or whether there is evidence that it

is actually misleading. W. Va. Ass’n of Club Owners & Fraternal Servs. v. Musgrave, 553

F.3d 292, 302 (4th Cir. 2009).

13 Here, each of the Act’s prohibitions targets speech that is either inherently or

actually misleading. The dangers in this area are clear. Drug-related lawyer advertisements

might give medically unsophisticated viewers the impression that attorneys are

disinterestedly dispensing medical or governmental advice instead of actively soliciting

clients. And those viewers might in response undertake a rash course of action detrimental

to their health and wellbeing by promptly dropping their medications. West Virginia has

merely attempted to abate these dangers.

Take the prohibitions in turn. First, the Act prohibits presenting “a legal

advertisement as a ‘consumer medical alert’, ‘health alert’, ‘consumer alert’, ‘public

service health announcement’, or substantially similar phrase suggesting to a reasonable

recipient that the advertisement is offering professional, medical, or government agency

advice about pharmaceuticals or medical devices rather than legal services.” W. Va. Code

§ 47-28-3(a)(2). The Act thus precludes dressing up a legal advertisement as something it

isn’t—a public service announcement or a medical alert. It thereby explicitly targets a

practice that is inherently misleading, and one which evidence shows is actually

misleading. See Fed. Trade Comm’n, FTC Flags Potentially Unlawful TV Ads for

Prescription Drug Lawsuits (Sept. 24, 2019) (“FTC Press Release”) (Ads that open “with

sensational warnings or alerts . . . may initially mislead consumers into thinking they are

watching a government-sanctioned medical alert or public service announcement.”); Jesse

King & Elizabeth Tippett, Drug Injury Advertising, 18 Yale J. Health Pol’y L. & Ethics

114, 146–47 (2019) (finding “clear evidence that deceptive drug injury advertisements are

likely to be misidentified” as public service or government announcements).

14 Next, the Act prohibits displaying a government logo “in a manner that suggests

affiliation with the sponsorship of that agency.” W. Va. Code § 47-28-3(a)(3). Suggesting

affiliation with the sponsorship of a government agency where none exists is inherently

deceptive, as it is in no way truthful to suggest that private attorney advertisements have

“the sponsorship” of the government. To their credit, plaintiffs do not argue otherwise.

The Act’s final prohibition disallows using “the word ‘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.” Id. § 47-28-3(a)(4). As “recall” is a

loaded term that brings to mind substantial government involvement, the Act prohibits

lawyers from using the word when there is in fact little or no government involvement. It

is entirely reasonable for the West Virginia legislature both to conclude that “recall” would

make consumers think that a government entity was responsible, and to decide that attorney

advertising which conveys that false impression would mislead its citizens about the safety

of medications or medical devices. And there is evidence confirming the legislature’s

judgment that “recall” is actually misleading. See, e.g., FTC Press Release (noting that

attorney advertisements “could leave consumers with the false impression that their

physician-prescribed medication has been recalled”); U.S. Chamber Inst. for Legal

Reform, Bad for Your Health: Lawsuit Advertising, Implications and Solutions (Oct.

2017), at 28 (“Bad for Your Health”) (noting testimony of Dr. W. Frank Peacock that a

legal advertisement persuaded a highly educated patient to discontinue use of a blood

thinning medication, even though it remained very safe and effective).

15 Plaintiffs argue that the Act prohibits the word “recall” even where an attorney

advertisement truthfully indicates that a drug or device has been recalled by the

manufacturer. They give the example of Zantac, where the FDA asked manufacturers to

withdraw the product from the market and the manufacturers then complied with the FDA’s

request. Noting that FDA regulations state that a “[r]ecall is a voluntary action” that “may

be undertaken voluntarily and at any time by manufacturers . . . or at the request of the

[FDA],” 21 C.F.R. § 7.40(a)–(b), plaintiffs conclude that the Act bans the use of the word

“recall” in this situation. They also raise other hypotheticals: where a manufacturer refuses

to withdraw its product after an FDA request, or where a manufacturer voluntarily removes

its product from the market.

At the outset, the Act actually allows the word “recall” in the Zantac scenario. As

the State conceded at oral argument, the Act would not prohibit describing what happened

with Zantac as a “recall.” Oral Arg. at 41:57–42:31. If the FDA has made a request for a

recall and the manufacturer complies, then there has been an “agreement between a

manufacturer and government agency.” W. Va. Code § 47-28-3(a)(4). The Act does not

define what an “agreement” is and, as the State notes, the phrase on its face encompasses

agreements of an informal nature. The concerns animating the recall prohibition—that

consumers would think that the government is involved when it is not, or would think that

the products are more dangerous than they are—are not present in the same way where the

government makes a request for the product to be withdrawn and the manufacturer

complies. Attorney advertisements are therefore free to describe an FDA request followed

by manufacturer compliance as a “recall.”

16 As to the scenarios of manufacturer refusal or voluntary withdrawal, plaintiffs

overlook the fact that objectively truthful speech can still be misleading. Even assuming,

then, that the Act prohibits the use of the word “recall” in these situations, we see no

constitutional infirmity here. We think it unlikely that individuals will carefully parse the

extent of the government’s involvement when they hear the word “recall.” Precisely

because the regulatory meaning of “recall” might not fully align with the ordinary meaning

that a consumer would assign, West Virginia seeks to prevent the mistaken assumptions

arising from this mismatch.

Even though attorneys may not use the word “recall” in these situations, they are

not prohibited by the Act from explaining truthfully the circumstances of a drug’s removal

from the market. Suppose, for example, plaintiffs were to say that “the drug’s manufacturer

refused to comply with an FDA request to take this product off the market.” Or suppose

they were to state that a manufacturer “has voluntarily withdrawn this medical device after

discovering health and safety concerns.” We need not pass on all the different hypothetical

statements that might arise, because such cases are not before us. Suffice it to note that

statements such as the above would present a controversy that is different from the case at

bar.

One can imagine multiple ways to accurately describe what has happened without

relying on the troublesome word “recall.” That West Virginia requires plaintiffs to make

use of available alternatives instead of resorting to the loaded (and potentially misleading)

shorthand plaintiffs prefer seems to us eminently reasonable. It also means that

manufacturers are incentivized to freely remove defective drugs on their own, without

17 worrying that the word “recall” will be plastered all over an advertisement and convey the

misleading impression that the government has pulled the medication off the market.

Again, attorney advertisements are not shut down—the ads just cannot use the word

“recall” in limited and potentially misleading contexts.

2.

Next we ask whether the government interest justifying the Act is “substantial.”

Central Hudson, 447 U.S. at 566. The Supreme Court in Central Hudson noted that

commercial speech “at least must concern lawful activity and not be misleading” to come

within the First Amendment’s protections. Id. We have concluded that West Virginia

targets misleading speech through the Act, and so we likely need proceed no further. Out

of a sense of caution, however, we take up the remainder of the Central Hudson analysis.

In that connection, we note that West Virginia has two substantial interests in this

case: protecting public health and preventing deception. First, the Act implicates the State’s

fundamental interest in protecting public health because it prevents medical mishaps

arising out of misleading lawyer advertising. This is a canonical state interest; West

Virginia unquestionably has a “compelling interest in assuring safe health care for the

public.” Varandani v. Bowen, 824 F.2d 307, 311 (4th Cir. 1987). Ensuring the health and

safety of West Virginia’s residents is crucial to the State’s police power, and West Virginia

has broad authority to regulate in this domain.

Second, and relatedly, the State has a substantial interest in protecting its citizens

from deception when it comes to medical issues. As we have already discussed, the Act

implicates this interest because it specifically targets words and phrases that are actually or

18 inherently misleading. And one need only watch a single thirty-second television

advertisement for a new medication, or merely peek inside the medicine cabinet, to realize

that accurate information about medications and their side effects is of the utmost

importance. The extensive regulation surrounding the public discussion of the ever-

proliferating number of prescriptions and medications indicates that communications in

this area must be handled with the greatest care.

Plaintiffs counter that the State’s asserted interests merely repeat the losing

arguments from Sorrell. True, in Sorrell, Vermont asserted a public-health justification that

the Supreme Court found unavailing. See 564 U.S. at 576–79. But that was because the

whole premise of the challenged law was that the regulated speech—which the State

admitted was completely truthful—was too persuasive. Id. at 577–78. And that’s why,

where Vermont did not argue that the challenged law would prevent false or misleading

speech, its attempt to regulate “turn[ed] on nothing more than a difference of opinion.” Id.

at 579. Not so here. West Virginia has argued that the Act would prevent misleading

speech, and it is not trying to regulate the advertisements in question merely because they

are persuasive. The Act does not prohibit attorneys in West Virginia from using

advertisements to convince potential clients to sue, just as before. But it does disallow

attorneys from spreading misleading information that may well cause viewers to take

drastic actions that negatively affect their health.

Over a century ago, the Supreme Court paid heed to West Virginia’s interests in

protecting public health and preventing deception as to medical issues when it upheld West

Virginia’s medical licensing requirements. See Dent v. West Virginia, 129 U.S. 114, 122–

19 23 (1889). The State here justifiably asserts the same interests, and we have no trouble in

concluding that those interests are substantial.

3.

Finally, we address the last two steps of Central Hudson to ask whether the Act

“directly advances” West Virginia’s substantial interests in a way that is “not more

extensive than is necessary” to serve those interests. 447 U.S. at 566. As to direct

advancement, West Virginia’s burden “is not satisfied by mere speculation or conjecture”;

instead, the State “must demonstrate that the harms it recites are real and that its restriction

will in fact alleviate them to a material degree.” Edenfield, 507 U.S. at 770–71. Yet there

is no requirement that “empirical data come . . . accompanied by a surfeit of background

information.” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 555 (2001) (quoting Fla. Bar,

515 U.S. at 628). Rather, the State may “justify speech restrictions by reference to studies

and anecdotes pertaining to different locales altogether”—or even “based solely on history,

consensus, and simple common sense.” Id. (quoting Fla. Bar, 515 U.S. at 628) (internal

quotation marks omitted).

The extensiveness prong “complements” the direct-advancement inquiry. Greater

New Orleans Broad. Ass’n, 527 U.S. at 188. Here, the State “is not required to employ the

least restrictive means conceivable.” Id. Instead, there needs to be a “fit between the

legislature’s ends and the means chosen to accomplish those ends—a fit that is not

necessarily perfect, but reasonable; that represents not necessarily the single best

disposition but one whose scope is in proportion to the interest served; that employs . . . a

means narrowly tailored to achieve the desired objective.” Fox, 492 U.S. at 480 (internal

20 quotation marks and citations omitted). Because it is difficult to “establish[] with precision

the point at which restrictions become more extensive than their objective requires,” this

standard gives the State “needed leeway in a field (commercial speech) traditionally subject

to governmental regulation.” Id. at 481 (internal quotation marks omitted).

The Act’s prohibitions plainly pass this test. As previously noted, each prohibition

targets particular misleading words or images in order to protect public health and prevent

citizens from taking misguided medical actions based on attorney advice. The State wants

to ensure that viewers understand that attorneys are engaging in legal solicitation, not

tendering medical advice with the government’s imprimatur. Preventing inherently

misleading uses of phrases like “medical alert” or “public service health announcement,”

misleading words like “recall,” and misleading uses of images that suggest government

“sponsorship,” directly advances that goal—as studies and anecdotes confirm. And the fit

here is narrowly tailored and reasonable. The Act does not strip attorneys of the ability to

advertise. It does not presume to dictate what attorneys can say about their legal services,

but instead reaches misleading statements about drugs or devices that might give rise to a

lawsuit. It does not affect other industries or activities, but instead focuses on a particular

problem. Really, the Act does not ask for much, but instead requires that attorneys present

themselves truthfully as attorneys when they advertise.

Plaintiffs argue that West Virginia introduced no evidence that misleading lawyer

advertising is a real (rather than hypothetical) problem in West Virginia. This of course

ignores that intermediate scrutiny permits evidence “pertaining to different locales.” Fla.

Bar, 515 U.S. at 628. But it also overlooks the “studies and anecdotes,” id., that the State

21 did put forward to show both that attorney advertisements involving medications or

medical devices can and do mislead viewers—and that attorneys often use the precise

tactics that the State prohibits in the Act. Ominous warnings or alerts may lead viewers to

think that an attorney advertisement conveys impartial medical information. See, e.g., FTC

Press Release; King & Tippett, supra, at 146–47; Bad for Your Health, supra, at 10

(providing visual example). Using government logos to suggest sponsorship can do the

same. See, e.g., Leah Miller, AARP, Don’t Confuse Lawsuit Ads That Look Like Public

Service Announcements (Mar. 21, 2018) (noting that “bad drug” advertisements often

“feature altered logos of government agencies like the Food and Drug Administration”);

Bad for Your Health, supra, at 13 (providing visual examples). And the misleading use of

the word “recall” can lead to similar problems. See, e.g., FTC Press Release. To prevent

these specific misperceptions by the audience—and the misguided courses of action that

might spring from them—the State has prohibited these specific practices by attorneys.

That West Virginia already has existing restrictions on lawyer advertising is

similarly no reason to find that the Act’s prohibitions fail intermediate scrutiny. As we have

reasoned before, a statute “must stand or fall on its own merits, independent of whether it

overlaps with other parts of [West Virginia’s] legal landscape. The judgment we have to

make is whether this Act is or is not a constitutional one. And all the duplication in the

world would not by itself condemn it.” Wash. Post v. McManus, 944 F.3d 506, 523 (4th

Cir. 2019). It is also not clear that these prohibitions are in fact duplicative. The Act’s

requirement of a one-line disclaimer that “this is a legal advertisement,” placed in fine

print, may not have seemed sufficient to prevent the specific mischief that West Virginia

22 seeks to avert. The legislature reasonably concluded that more was necessary in this

situation, where the public-health consequences are substantial.

Plaintiffs next contend that West Virginia failed to “consider alternatives to

regulating speech to achieve its ends,” Musgrave, 553 F.3d at 305, suggesting that the State

should undertake an “educational campaign[] focused on the problems” here instead of

resorting to the Act’s prohibitions, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 507

(1996). Yet it is difficult to visualize what this imagined campaign would look like. After

all, the State is not regulating speech to convey a different message. Instead, it seeks to

ensure that the information others communicate is truthful and not misleading. We thus

doubt that a public-awareness campaign “might prove to be more effective” than the Act’s

prohibitions. Id. at 507. It is much more likely that misleading speech would wipe out the

potential benefits of such a campaign.

West Virginia has chosen fitting means to prevent misleading speech. To achieve

this end, it properly elected to enact the prohibitions that it did. And West Virginia is not

out on a limb in doing so. In fact, two other States have passed nearly identical legislation,

and several others have considered similar laws in recent legislative sessions. See Tex.

Gov’t Code § 81.153; Tenn. Code § 47-18-3002; see also Fla. S.B. 1992 (2021); Kan. S.B.

150 (2021); Ky. S.B. 20 (2021); La. S.B. 43 (2021).

Finally, plaintiffs argue that the alert and logo provisions are vague because they

fail to provide fair notice as to which phrases are “substantially similar” or which logos

suggest “sponsorship.” But a law is not void for vagueness so long as it “(1) establishes

minimal guidelines to govern law enforcement, and (2) gives reasonable notice of the

23 proscribed conduct.” Schleifer v. City of Charlottesville, 159 F.3d 843, 853 (4th Cir. 1998)

(internal quotation marks omitted). That some smidgen of ambiguity remains is no reason

to find a statute unconstitutionally vague. United States v. Chong Lam, 677 F.3d 190, 202

(4th Cir. 2012).

The Act does establish minimal guidelines and give reasonable notice: it makes

clear specific terms the State has deemed misleading and why. And language like

“suggesting an affiliation” or “substantially similar” has been upheld by other courts in the

face of vagueness challenges. See, e.g., United States v. Johnson, 626 F.3d 1085, 1090 (9th

Cir. 2010) (“evidences [an] affiliation”); United States v. Demott, 906 F.3d 231, 237 (2d

Cir. 2018) (“substantial similarity”). We see no vagueness problem here, just run-of-the-

mill statutory phrases.

In short, we hold that the Act’s prohibitions are subject to Central Hudson’s

intermediate scrutiny. Applying that standard, we conclude that the prohibitions pose no

constitutional problem. We thus reverse the district court’s holding that the Act’s

prohibitions violate the First Amendment.

III.

We turn now to the Act’s disclosure requirements. The Supreme Court has made

clear that there are “material differences between disclosure requirements and outright

prohibitions on speech.” Zauderer v. Off. of Disciplinary Couns., 471 U.S. 626, 651 (1985).

After all, as the Court noted, the “constitutionally protected interest in not providing any

particular factual information in . . . advertising is minimal.” Id.; see also Robert Post,

Compelled Commercial Speech, 117 W. Va. L. Rev. 867, 877 (2015) (“Because the

24 constitutional value of commercial speech lies in the circulation of information, restrictions

on commercial speech and compulsions to engage in commercial speech are

constitutionally asymmetrical” and mandatory disclosures “may even enhance” the

“constitutional purpose of commercial speech doctrine.”). So, while prohibitions on

commercial speech must pass the test articulated in Central Hudson, Zauderer held that

laws requiring advertisers to disclose “purely factual and uncontroversial information” are

permissible as long as the disclosure requirements are “reasonably related to the State’s

interest in preventing deception of consumers.” 471 U.S. at 651.

To reiterate, plaintiffs challenge two disclosure requirements here. Both apply only

to advertisements made “in connection with a prescription drug or medical device approved

by the U.S. Food and Drug Administration.” W. Va. Code § 47-28-3(b)(1), (b)(2). The

subsection (b)(1) disclosure requires that such advertisements include the language: “Do

not stop taking a prescribed medication without first consulting with your doctor.

Discontinuing a prescribed medication without your doctor’s advice can result in injury or

death.” Id. § 47-28-3(b)(1). And the subsection (b)(2) disclosure requires that advertisers

“disclose that the subject of the legal advertisement remains approved by the U.S. Food

and Drug Administration, unless the product has been recalled or withdrawn.” Id. § 47-28-

Here, the district court properly noted that Zauderer generally applies to the

mandatory disclosure of commercial speech. But it invalidated the disclosure requirements

anyway, concluding that they were not sufficiently factual and uncontroversial for

25 Zauderer’s reasonable relation test to apply and, in any event, that they failed this

deferential test. We disagree on both counts.

Initially, as we have made clear, Zauderer applies to the disclosure requirements. In

that case, which also concerned the regulation of attorney advertisements, the Court

observed that the State had merely required the disclosure of “purely factual and

uncontroversial information about the terms under which [the attorney’s] services will be

available,” 471 U.S. at 651, and it is within this context that Zauderer’s reasonable relation

test applies. Recently, in National Institute of Family & Life Advocates v. Becerra (NIFLA),

138 S. Ct. 2361 (2018), the Supreme Court cautioned against applying Zauderer to

disclosures that “in no way relate[]” to the services being offered or that compel speech on

hotly contested topics. Id. at 2372. There, the Court declined to apply Zauderer to a state

statute that required private medical clinics to post information about entirely unrelated

“state-sponsored services—including abortion, anything but an ‘uncontroversial’ topic.” Id

(emphasis omitted). At the same time, the Court underscored that it did not “question the

legality of health and safety warnings long considered permissible.” Id. at 2376.

This case is far from the boundary line staked out by NIFLA. Unlike in that case,

the disclosure requirements here are directly targeted at promoting the State’s interest “in

dissipat[ing] the possibility of consumer confusion or deception.” Zauderer, 471 U.S. at

651 (quoting In re R. M. J., 455 U.S. at 201). And they do so by providing information

directly connected to the subject of the advertisement, rather than by compelling speech

concerning unrelated or competing services. Moreover, the requirements here are just the

26 sort of “health and safety warnings” that have been “long considered permissible.” NIFLA,

138 S. Ct. at 2376. The only question, then, is whether these required disclosures are

“factual and uncontroversial.” Zauderer, 471 U.S. at 651. We conclude that they are.

Begin with subsection (b)(1). That provision, taken as a whole, requires attorneys

to inform their audience that discontinuing medications without medical advice “can result

in injury or death” and that viewers or listeners should not discontinue a prescribed

medication without first consulting their doctors. W. Va. Code § 47-28-3(b)(1). This is

factual and uncontroversial information: it is well known, after all, that suddenly

discontinuing certain medications can cause injury or death, and plaintiffs do not dispute

this point. And given this context, the disclosure that patients should consult with their

doctor before discontinuing medication simply communicates to the audience the factual

and uncontroversial point that the advice of a physician mitigates this risk of injury or

death.

The district court came to a different conclusion. Taking the first sentence of

subsection (b)(1) in isolation, it determined that advising patients to consult their doctors

before discontinuing a prescription medication qualified as “more professional advice and

opinion than purely factual or uncontroversial.” J.A. 234. But reading that sentence on its

own cleaves the disclosure in half. The statement that patients should consult with their

doctor is no freestanding admonition but merely the first half of a two-sentence disclosure.

It is immediately followed by the statement that abruptly discontinuing medications may

result in injury or death. In this context, the implied message becomes clear. Just telling a

27 patient that discontinuing a drug may result in injury or death without medical advice very

naturally invites the follow-up question, “How may I avoid that outcome?” The first

sentence of subsection (b)(1) supplies the factual and uncontroversial answer: “You may

reduce the risk by consulting with your doctor.”

In any event, the district court proceeded from a mistaken premise, as a statement

framed as an instruction can still be factual and uncontroversial. Is there really any

difference between a recipe that says “Bake at 425 degrees for 35 minutes” and one that

says, “The pie will be undercooked if you bake it for much less than 35 minutes and

overcooked if you bake it for much longer”? Of course, instructions may turn out to be

opinionated or non-factual on closer examination. But not always, and it is the

communicative content of the message, rather than the format, that is dispositive. A

sentence framed as “an instruction rather than a direct factual statement” may be factual

and uncontroversial where it “clearly implies a factual statement” that is true. CTIA, 928

F.3d at 847 (applying Zauderer to uphold the required disclosure, “Refer to the instructions

in your phone or user manual for information about how to use your phone safely.”). That

is precisely the case here.

As to the subsection (b)(2) requirement, the analysis is straightforward. To repeat,

advertisements must “disclose that the subject of the legal advertisement remains approved

by the U.S. Food and Drug Administration, unless the product has been recalled or

withdrawn.” W. Va. Code § 47-28-3(b)(2). If an FDA-approved prescription drug has not

been recalled or withdrawn, it is indisputably the case that the drug remains approved by

28 the FDA. W. Va. Code § 47-28-3(b)(2); see also 21 C.F.R. § 314.150 (requiring products

to be withdrawn from the market where the FDA revokes approval). And while the district

court noted that whether to disclose this fact may be “the subject of controversy” in some

cases, J.A. 234, this reasoning misinterprets Zauderer. The question is not whether the

existence of a given disclosure requirement is controversial; any time there is litigation

over a disclosure requirement, there is, by definition, a “case” or “controversy” concerning

that requirement. See U.S. Const. art. III, § 2, cl. 1. Rather, the question is whether the

content of a required disclosure is controversial. See Zauderer, 471 U.S. at 651 (referencing

“purely factual and uncontroversial information” (emphasis added)). And the statement

that an FDA-approved drug remains approved strikes us as entirely anodyne.

Under Zauderer, we next assess whether the disclosure requirements are reasonably

related to the State’s interest in preventing consumer deception. This standard is not

toothless, since requirements cannot be “unjustified or unduly burdensome,” Zauderer, 471

U.S. at 651, and since the disclosures must remedy a harm that is “potentially real not

purely hypothetical,” NIFLA, 138 S. Ct. at 2377 (quoting Ibanez v. Fla. Dep’t of Bus. &

Pro. Regul., 512 U.S. 136, 146 (1994)). But the standard remains deferential, in keeping

with the “minimal” interest that advertisers have in refraining from “providing any

particular factual information.” Zauderer, 471 U.S. at 651.

In the context of attorney advertisements concerning medical devices or prescription

drugs, the State’s interest in preventing deception of consumers is undeniably strong. As

the State notes and as we have discussed, studies indicate that consumers may indeed be

29 confused by such advertisements and may mistake them for medical advice. See

Appellant’s Opening Br. at 31 (citing King & Tippett, supra, at 144). In other cases,

patients may mistakenly believe that a product has been recalled when it in fact remains

approved for public use. See FTC Press Release.

Moreover, unlike with many products, the consequences of consumer confusion in

this context may be grave. Patients who stop using a medication cold turkey and without

the advice of their physician may unwittingly be taking great risks. In some cases, the

patient may even die. See King & Tippett, supra, at 128 n.84 (noting a study that found

two deaths after patients stopped taking medication in response to attorney

advertisements). In this arena, then, the State’s interest in preventing consumer deception,

as identified by the Supreme Court in Zauderer, overlaps with its interest in “furthering

public health and safety.” CTIA, 928 F.3d at 844.

Against all this, the district court suggested that in some circumstances mandatory

disclosures may not be beneficial, questioning whether it would further the State’s interest

to remind patients that opioids remain approved by the FDA. Plaintiffs likewise argue that

the attorney advertisements at issue may not be misleading in all cases and that, even if

they were, mandatory disclosures might not best solve the problem. But it is not our task

to assess the validity of the studies relied upon by the State or to make an empirical

judgment as to whether mandatory disclosures are the most appropriate remedy. These are

questions quintessentially reserved to the political branches, an assignment of

responsibility that Zauderer’s deferential standard emphatically reinforces. Nor do we

think that the State fails the reasonable relation test simply because there might conceivably

30 be some individual instance in which mandatory disclosures arguably produce more harm

than good. West Virginia is free to come to its own conclusions as to the value of disclosure

requirements amid the ongoing opioid crisis. It acted well within its authority in

determining that a policy of mandatory disclosures would, on the whole, best serve the

State’s interests.

Finally, plaintiffs argue that the disclosure requirements, considered in their

entirety, are “unjustified or unduly burdensome.” NIFLA, 138 S. Ct. at 2377 (quoting

Zauderer, 471 U.S. at 651). The Supreme Court has applied this standard where the only

asserted justification for a disclosure requirement is “purely hypothetical.” See id.; Ibanez,

512 U.S. at 146–47. And the Court has also indicated that a requirement should extend “no

broader than reasonably necessary,” NIFLA, 138 S. Ct. at 2377 (quoting In re R. M. J., 455

U.S. at 203), so courts have overturned requirements mandating that a large fraction of the

advertisement be dedicated to the disclosure, see Am. Beverage Ass’n v. City & Cnty. of

San Francisco, 916 F.3d 749, 757 (9th Cir. 2019), or that make the relevant advertisement

functionally impossible, see Ibanez, 512 U.S. at 146–47.

The disclosure requirements here pose no such issue. In response to concrete

concerns supported by empirical evidence, West Virginia imposes relatively benign

burdens on attorneys. First, the Act mandates commonplace disclosures clarifying the

nature and identity of the advertisements at issue, requirements that plaintiffs do not

specifically challenge. And second, the Act requires two or three short sentences informing

patients that they should not discontinue a drug without consulting a doctor, that

discontinuing a drug may be hazardous, and, if applicable, that the drug remains FDA

31 approved. This limited intrusion into a given advertisement is entirely commonplace. Rare

is the radio listener or television viewer who has not sat through far more voluminous

warnings and disclosures than those mandated here.

In short, we conclude that the disclosure requirements at issue here are subject to

Zauderer and that they easily pass the deferential standard articulated by that case. We

therefore reverse the district court’s holding that these requirements violate the First

Amendment.

IV.

Plaintiffs try to transfigure the Act into a sweeping and draconian enactment. But

all West Virginia requires is that attorneys truthfully present themselves as attorneys. The

Act’s prohibitions and disclosures work together to accomplish this end—and to protect

the health of West Virginia citizens who may be misled into thinking that attorneys are

reliable sources of medical advice. The Act survives constitutional challenge. We thus

reverse the judgment of the district court and remand the case with directions that it be

dismissed.

REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS