Indiana § 24-5-26-3 - Violation; remedies

§ 24-5-26-3. Violation; remedies

Sec. 3. A person who knowingly or intentionally violates this chapter commits a deceptive act that is actionable by the attorney general under IC 24-5-0.5-4 and is subject to the penalties and remedies available to the attorney general under IC 24-5-0.5. This section does not affect the availability of any civil remedy for a violation of this chapter, IC 24-5-0.5, or any other state or federal law.

As added by P.L.137-2009, SEC.8.

IC 24-5-26.5Chapter 26.5. Deceptive Lead Generation

24-5-26.5-1"Commercial communication" 24-5-26.5-2"Consumer" 24-5-26.5-3"Lead generation" 24-5-26.5-4"Legend drug" 24-5-26.5-5"Manufacturer" 24-5-26.5-6"Medical device" 24-5-26.5-7"Seller" 24-5-26.5-8"Sponsor" 24-5-26.5-9Deceptive act 24-5-26.5-10Required disclosures 24-5-26.5-11Appropriate course of action materially limited 24-5-26.5-12Lawyer referral service 24-5-26.5-13Rules 24-5-26.5-14Cause of action; remedy 24-5-26.5-15Court costs; litigation fees 24-5-26.5-16Statute of limitations 24-5-26.5-17Exceptions

IC 24-5-26.5-1"Commercial communication" Sec. 1. As used in this chapter, "commercial communication" means any written or oral statement, illustration, or depiction, whether in English or another language, that is designed to create interest in procuring legal services, whether it appears on or in a label, package, package insert, radio, television, brochure, newspaper, magazine, pamphlet, leaflet, circular, mailer, book insert, free standing insert, letter, catalog, poster, chart, billboard, public transit card, point of purchase display, film slide, audio program transmitted over a telephone system, telemarketing script, on-hold script, upsell script, training materials provided to a telemarketing firm, program length commercial, the Internet, cellular network, or any other medium, as well as promotional materials, items, and Internet web sites.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-2"Consumer" Sec. 2. As used in this chapter, "consumer" refers to an individual who views a commercial communication for personal or familial purposes.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-3"Lead generation" Sec. 3. As used in this chapter, "lead generation" refers to the use of commercial communication to initiate consumer interest or inquiry into legal services provided in Indiana or another jurisdiction to redress an alleged injury from a medical device or legend drug.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-4"Legend drug" Sec. 4. As used in this chapter, "legend drug" has the meaning set forth in IC 16-18-2-199.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-5"Manufacturer" Sec. 5. As used in this chapter, "manufacturer" means either of the following:

(1) A person that is engaged in a business to produce, create, make, or construct any product or component of a product, and that:

(A) designs, manufactures, or formulates; or

(B) engages another person to design, manufacture, or formulate;

a medical device or component or part of a medical device.

(2) A person that, by compounding, cultivating, harvesting, or mixing, or by another process produces or prepares legend drugs. The term includes a person that:

(A) prepares legend drugs in dosage forms by mixing, compounding, encapsulating, or entableting, or by another process; or

(B) packages or repackages legend drugs.

The term does not include a pharmacist or a practitioner (as defined in IC 16-42-19-5).

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-6"Medical device" Sec. 6. As used in this chapter, "medical device" refers to an instrument, an apparatus, an implement, a machine, a contrivance, an implant, an in vitro reagent, or another similar or related article, including a component part or accessory:

(1) that is recognized in the official National Formulary or the United States Pharmacopoeia, or any supplement to them;

(2) that is intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease, in a human being or an animal; or

(3) that:

(A) is intended to affect the structure or any function of the body of a human being or an animal;

(B) does not achieve its primary intended purpose through chemical action within or on the body of a human being or an animal; and

(C) is not dependent upon being metabolized for the achievement of its primary intended purpose.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-7"Seller" Sec. 7. As used in this chapter, "seller" means a person that, in the course of business conducted for that purpose, does either of the following:

(1) Sells, distributes, rents, leases, prepares, blends, packages, labels, or otherwise is involved in placing a medical device or legend drug into the stream of commerce.

(2) Installs, repairs, refurbishes, reconditions, or maintains a medical device.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-8"Sponsor" Sec. 8. As used in this chapter, "sponsor" means a person on whose behalf a commercial communication is conducted to promote or advertise legal services.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-9Deceptive act Sec. 9. (a) It is a deceptive act for a person to engage in lead generation that is false, deceptive, or misleading.

(b) Deceptive acts under this chapter may include lead generation that contains the following:

(1) Advertisements or other commercial communications that cause, or are likely to cause, consumers to:

(A) fail to use or to discontinue the consumers' medications; or

(B) remove a medical device;

without appropriate medical advice from a person who is independent from the lead generator and any person to whom the consumer would be referred.

(2) Advertisements or other commercial communications that open with sensationalized warnings or alerts that may mislead consumers to believe the consumers are watching a government sanctioned medical alert, health alert, consumer alert, or public service announcement.

(3) Advertisements or other commercial communications that:

(A) misrepresent the risks or benefits associated with a medical device or legend drug that is the subject of the lead generation advertisement or other commercial communication;

(B) leave consumers with the false impression that the risks of the medical device or legend drug exceed the benefits; or

(C) leave consumers with the false impression that the United States Food and Drug Administration has recalled a medical device or legend drug that is the subject of the advertisement or other commercial communication.

(c) A claim misrepresents a fact or is false if the claim is not substantiated by:

(1) competent and reliable scientific or medical evidence; or

(2) a final adjudication on the merits, including appeals.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-10Required disclosures Sec. 10. It is a deceptive act for a person engaged in lead generation to fail to make the following written and oral disclosures to a consumer who responds to an advertisement or other commercial communication subject to this chapter:

(1) Disclosures:

(A) that a case will be referred to another attorney or law firm to represent a consumer responding to the advertisement or other commercial communication;

(B) that identify the attorney or law firm that will represent a consumer responding to the advertisement or other commercial communication, if known; and

(C) that identify the sponsor of the advertisement or other commercial communication.

(2) Any other disclosure required under the rules adopted by the attorney general under section 13 of this chapter that the attorney general determines is necessary to permit a consumer to make an informed consent to a referral.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-11Appropriate course of action materially limited Sec. 11. Regardless of whether a client consumer enters into an agreement, it is a deceptive act for a person engaged in lead generation to engage in other conduct that creates a significant risk that a lawyer's ability to consider, recommend, or carry out an appropriate course of action for a client consumer will be materially limited.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-12Lawyer referral service Sec. 12. The provisions set forth in this chapter also apply to deceptive acts by a lawyer referral service that receives any benefit or consideration for the direct or indirect referral of prospective clients to lawyers or law firms.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-13Rules Sec. 13. The attorney general may adopt rules under IC 4-22-2 to carry out this chapter.

As added by P.L.176-2021, SEC.1. Amended by P.L.93-2024, SEC.173.

IC 24-5-26.5-14Cause of action; remedy Sec. 14. (a) A manufacturer or seller of medical devices or legend drugs or a consumer may bring an action against any combination of persons that authorize, finance, sponsor, participate in, or otherwise benefit from a deceptive act under this chapter. In the action the court may do any combination of the following:

(1) Issue an injunction.

(2) Order the person engaged in lead generation to reimburse money unlawfully received by any person from the aggrieved consumers to be held in escrow for distribution to aggrieved consumers, void or limit the application of contracts or clauses resulting from deceptive acts, and order other restitution as the court determines appropriate.

(b) A manufacturer, seller, or consumer that commences an action under this section shall serve the attorney general with a copy of the complaint. The attorney general may join an action under this section commenced by the manufacturer, seller, or consumer.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-15Court costs; litigation fees Sec. 15. A court with jurisdiction over an action under section 14 of this chapter may order the violator to pay court costs and reasonable litigation fees incurred.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-16Statute of limitations Sec. 16. An action brought under this chapter for a deceptive act may not be brought more than two (2) years after the occurrence of the deceptive act.

As added by P.L.176-2021, SEC.1.

IC 24-5-26.5-17Exceptions Sec. 17. (a) Nothing in this chapter limits or otherwise affects the authority of the supreme court to regulate the practice of law, establish and enforce rules of professional conduct for attorneys, law firms, and legal referral services, or discipline individuals admitted to the practice of law in Indiana.

(b) This chapter does not apply to attorneys licensed to practice law in the state of Indiana.

(c) Subsection (b) does not prohibit an injunction against a deceptive act.

As added by P.L.176-2021, SEC.1.

IC 24-5-27Chapter 27. Intrastate Inmate Calling Services

24-5-27-1Applicability 24-5-27-2"Ancillary service charge" 24-5-27-3"Authorized fee" 24-5-27-4"Collect calling" 24-5-27-5"Consumer" 24-5-27-6"Correctional facility" 24-5-27-7"Debit calling" 24-5-27-8"Flat rate calling" 24-5-27-9"Inmate" 24-5-27-10"Inmate calling service" 24-5-27-11"Inmate telephone" 24-5-27-12"Intrastate call" 24-5-27-13"Jurisdictionally mixed charge" 24-5-27-14"Mandatory tax or fee" 24-5-27-15"Per call or per connection charge" 24-5-27-16"Prepaid calling" 24-5-27-17"Prepaid collect calling" 24-5-27-18"Provider of inmate calling services" 24-5-27-19Intrastate inmate calling services rate cap 24-5-27-20Ancillary service charges for intrastate inmate calling services 24-5-27-21Provider interference with intrastate inmate calling services 24-5-27-22Taxes and fees for intrastate inmate calling services 24-5-27-23Per call or per connection charge for intrastate inmate calling services prohibited 24-5-27-24Flat rate for intrastate inmate calling services prohibited 24-5-27-25Debit and prepaid intrastate inmate calling services 24-5-27-26Contracts for inmate calling services in violation of this chapter prohibited 24-5-27-27Violation of this chapter a deceptive act