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‘Pain Referral Service’ Sues Minnesota

MINNEAPOLIS (CN) - A "pain referral service" and chiropractor claim in court that a new Minnesota law unconstitutionally restricts their ability to advertise and to refer people for medical treatments.

1-800-411-Pain Referral Service sued the Minnesota Board of Chiropractors, in Federal Court. Also suing are Truman Injury PLLC and Sergio Triana, D.C.

They challenge Minnesota Law Chapter 255, which amended Minnesota's No-Fault (Insurance) Act.

"In 2012, the Minnesota Legislature enacted, and Gov. Mark Dayton signed, Minnesota Law Chapter 255, which amended provisions of Minnesota's No-Fault Act, Minn. Stat. § 65B.54 to significantly restrict advertisements for medical treatment, or

for referrals for medical treatment, that could be compensable under Minn. Stat. § 65B. The amended statute has an effective date of Jan. 1, 2013," according to the complaint.

"The new law completely bans certain speakers from making certain truthful, non-misleading statements. For example, the law creates blanket prohibitions on advertisements that identify the 'dollar amounts of the potential benefits' available under the Minnesota No-Fault Act."

The lead plaintiff acknowledged in the complaint: "Some of 411 Pain's television advertisements feature a vehicle crash and then an actor appearing as a police officer or EMT with an ambulance conveying to viewers that if they call the phone number associated with 800-411-PAIN or go to 411Pain.com, they can get help after being injured in an accident. These advertisements contain a disclaimer stating that the person appearing in the advertisement is a 'PAID ACTOR,' and clarifying that the actor is not actually associated with any law enforcement agency.

"Some of 411 Pain's advertisements on billboards, radio, and television identify the dollar amount of benefits to which the victim of an automobile accident may be entitled under the State of Minnesota's No-Fault Act.

"Truman Injury and Dr. Triana are part of 411 Pain's network in Minnesota."

The plaintiffs claim the law is unduly burdensome: "The law also prohibits any advertising by medical-referral services - like plaintiff 411 Pain - by requiring that only licensed health care providers or those acting at their direction may authorize advertising for referrals of services compensable under the Minnesota No-Fault Act. Although 411 Pain refers accident victims to potentially dozens of different providers, 411 Pain does not advertise at the direction of any one provider. Thus, 411 Pain's advertisements for a completely legal service - medical referrals - are entirely prohibited by the new law.

"The law also contains burdensome disclosure requirements that amount to a blanket ban on protected commercial speech. The law requires that all advertisements for

referrals for medical treatment 'prominently display or reference' the name of every

provider who 'directed' the advertisement. Even if the providers to whom 411 Pain refers accident victims can be said to 'direct' 411 Pain's advertising as required by the law, it would be impossible for 411 Pain to identify all of the providers to whom 411 Pain refers accident victims in the limited space available on billboards, radio, or television advertisements. Thus, as applied to 411 Pain, the law's disclosure requirements amount to a complete ban on speech.

"When enacting these restrictions, the Legislature understood that it would 'eliminate' 411 Pain's ability to advertise in Minnesota. The bill's author in the Minnesota Senate claimed the bill would impact providers who use 'out of Florida

Companies' like 411 Pain. As the bill was about to pass the Minnesota House of

Representatives, one member pointed out that legislation could put 411 Pain out of

business, but they would 'see where this goes.'

"The First Amendment does not allow a state to enact blanket bans on truthful, non-misleading advertisements simply based on the identity of the speaker or because the state objects to the message. The state also may not 'hamstring' certain types of commercial speech by creating a regulatory system that makes it impossible for certain speakers to advertise.

"Here, Minnesota's speech restrictions violate the First Amendment to the Constitution of the United States because there is no evidence that the limitations on

plaintiffs' commercial speech will directly or materially advance any state interest and because the restrictions are not narrowly drawn to achieve the state's interests." (Citations omitted.)

The plaintiffs want enforcement of the law enjoined and declaratory judgment that it is unconstitutional. They are represented by David Asp with Lockridge Grandal & Nauen.

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