Florida Senate - 2023                                    SB 1246
       
       
        
       By Senator Yarborough
       
       
       
       
       
       4-00496A-23                                           20231246__
    1                        A bill to be entitled                      
    2         An act relating to truth in legal advertising;
    3         creating s. 501.139, F.S.; defining terms; specifying
    4         prohibited practices relating to advertisements for
    5         legal services; requiring persons and entities that
    6         issue advertisements to solicit certain clients to
    7         include specified information and statements in such
    8         advertisements; providing for both written and verbal
    9         statements in advertisements for legal services;
   10         providing requirements for such written and verbal
   11         statements; providing that the person or entity that
   12         issues an advertisement is solely responsible for
   13         ensuring its compliance with specified provisions;
   14         providing media entities with immunity from liability
   15         for disseminating another person’s or entity’s
   16         advertisement that violates specified provisions;
   17         providing applicability; prohibiting the use,
   18         obtaining, sale, transfer, or disclosure of a
   19         consumer’s protected health information for a
   20         specified purpose without written authorization;
   21         providing an exception; providing that certain
   22         violations are deemed deceptive and unfair trade
   23         practices; providing construction; providing an
   24         effective date.
   25          
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Section 501.139, Florida Statutes, is created to
   29  read:
   30         501.139 Advertisements for legal services.—
   31         (1)As used in this section, the term:
   32         (a)“Advertisement for legal services” means any
   33  representation disseminated in any manner through a media entity
   34  for the purpose of soliciting prospective clients for legal
   35  services. The term includes such solicitation by a person with
   36  the intent to transfer data obtained from the consumer to one or
   37  more attorneys for legal services.
   38         (b)“Media entity” means a radio broadcast station, a
   39  television broadcast station, a cable television company, a
   40  newspaper company, a periodical company, a billboard company, an
   41  advertising agency, a digital media platform, or a bona fide
   42  news or public interest website operator.
   43         (c)“Protected health information” has the same meaning as
   44  provided in 45 C.F.R. s. 160.103.
   45         (d)“Solicit” means attempting to procure a client for
   46  legal services by initiating unsolicited personal, telephone, or
   47  real-time electronic contact or by advertising such services
   48  through print media, video or audio recorded advertisements, or
   49  electronic communications.
   50         (2)A person or an entity that issues an advertisement for
   51  legal services may not do any of the following:
   52         (a)Present the advertisement as a medical alert, health
   53  alert, drug alert, or public service announcement or use any
   54  substantially similar phrase that suggests to a reasonable
   55  consumer that the advertisement is offering professional or
   56  medical advice or advice from a state or federal governmental
   57  entity or an entity approved by or affiliated with a state or
   58  federal governmental entity.
   59         (b)Display the logo of a state or federal governmental
   60  entity in a manner that suggests to a reasonable consumer that
   61  the advertisement is presented by a state or federal
   62  governmental entity or by an entity approved by or affiliated
   63  with a state or federal governmental entity.
   64         (c)Use the term “recall” when referring to a product that
   65  has not been recalled in accordance with applicable state or
   66  federal regulations.
   67         (3)A person or an entity that issues an advertisement for
   68  legal services to solicit clients who may allege injury from a
   69  prescription drug or medical device approved by the United
   70  States Food and Drug Administration shall include all of the
   71  following in the advertisement:
   72         (a)The statement, “This is a paid advertisement for legal
   73  services,” which must appear at the beginning of the
   74  advertisement.
   75         (b)The identity of the sponsor of the advertisement.
   76         (c)Either the identity of the attorney or the law firm
   77  that will be primarily responsible for providing the solicited
   78  legal services to a consumer who engages the attorney or law
   79  firm in response to the advertisement or an explanation of how a
   80  responding consumer’s case will be referred to an attorney or a
   81  law firm if the sponsor of the advertisement is not licensed to
   82  practice law.
   83         (d)A statement that a prescription drug or medical device
   84  approved by the United States Food and Drug Administration
   85  remains approved unless it has been recalled in accordance with
   86  the applicable state or federal regulations.
   87         (e)The statement, “Consult your physician before making
   88  any decision regarding prescribed medication or medical
   89  treatment.”
   90         (4)The statements required to appear in an advertisement
   91  under this section must be made in both written and verbal
   92  formats, except that a print-only advertisement may include the
   93  statements in written format only and an audio-only
   94  advertisement may include the statements in verbal format only.
   95         (a)Required written statements must appear in a clear and
   96  conspicuous font and manner and, for visual advertisements, must
   97  appear on screen for a sufficient length of time for a
   98  reasonable consumer to read the statement. A written statement
   99  is presumed to comply with the requirements of this subsection
  100  if it appears in the same font style and size and for the same
  101  duration as a printed reference to the telephone number or
  102  website that a consumer is to use to contact the entity for the
  103  advertised legal services, provided such duration is at least 10
  104  seconds.
  105         (b)Required verbal statements must be audible,
  106  intelligible, and presented with equal prominence and speed as
  107  the other parts of the advertisement. A verbal statement is
  108  presumed to comply with the requirements of this subsection if
  109  it is made at approximately the same volume and uses
  110  approximately the same number of words per minute as used when
  111  presenting other information in the advertisement which is not
  112  required under this section.
  113         (5)The person or entity that issues an advertisement for
  114  legal services is solely responsible for ensuring that such
  115  advertisement complies with this section, and a media entity may
  116  not be held liable or subjected to any penalty for producing,
  117  distributing, transmitting, displaying, publishing, or otherwise
  118  disseminating another person’s or entity’s advertisement for
  119  legal services which violates this section.
  120         (6)This section does not apply to an advertisement that
  121  has been reviewed and approved by an ethics or disciplinary
  122  committee of The Florida Bar in accordance with its rules of
  123  professional conduct.
  124         (7)A person or an entity may not use, cause to be used,
  125  obtain, sell, transfer, or disclose a consumer’s protected
  126  health information to another person or entity for the purpose
  127  of soliciting the consumer for legal services without written
  128  authorization from that consumer. This subsection does not apply
  129  to the use or disclosure of protected health information to an
  130  individual’s legal representative in the course of any judicial
  131  or administrative proceeding or as otherwise permitted or
  132  required by law.
  133         (8)A violation of this section is deemed a deceptive and
  134  unfair trade practice subject to enforcement under part II of
  135  this chapter.
  136         (9)This section does not limit or otherwise affect the
  137  authority of The Florida Bar to regulate the practice of law,
  138  enforce its rules of professional conduct, or discipline any
  139  person admitted to practice law in this state.
  140         Section 2. This act shall take effect July 1, 2023.