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AB-2329 Workers’ compensation: advertising.(1991-1992)

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Assembly Bill No. 2329
CHAPTER 904

An act to add Chapter 2.3 (commencing with Section 5430) to Part 4 of Division 4 of the Labor Code, relating to workers’ compensation.

[ Filed with Secretary of State  September 25, 1992. Approved by Governor  September 24, 1992. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 2329, Peace. Workers’ compensation: advertising.
Existing law requires attorneys who represent employees in workers’ compensation claims to furnish to an employee at an initial consultation, a written disclosure form setting forth, among other things, a statement that a person who makes or causes to be made a false or fraudulent material statement or representation for the purpose of obtaining or denying workers’ compensation benefits or payments is guilty of a felony. Existing law also requires that statement to appear on workers’ compensation claim forms, information request forms, and responses to information request forms.
This bill would be known as the Workers’ Compensation Truth in Advertising Act and would provide that any advertisement, as specified, which solicits persons to file workers’ compensation claims or to engage or consult counsel or a medical care provider or clinic to consider a workers’ compensation claim, shall contain or include, as specified, a notice or statement that making a false or fraudulent workers’ compensation claim is a felony punishable by up to 5 years in prison or by a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.
The bill would also provide that any advertisement or other device designed to produce leads based on a response from a person to file a workers’ compensation claim or to engage or consult counsel or a medical care provider or clinic shall disclose that an agent may contact the individual if that is the fact. The bill, among other things, would also prohibit an advertisement, as defined, from using deceptive or misleading names or words or symbols implying that a governmental agency or charitable institution is connected with the advertisement. This bill would provide that any advertiser, as defined, who violates these provisions is guilty of a misdemeanor, thus imposing a state-mandated local program.
The bill would state legislative intent.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

The people of the State of California do enact as follows:


SECTION 1.

 Chapter 2.3 (commencing with Section 5430) is added to Part 4 of Division 4 of the Labor Code, to read:
CHAPTER  2.3. Workers' Compensation—Truth in Advertising

5430.
 This chapter shall be known and may be cited as the Workers’ Compensation Truth in Advertising Act of 1992.

5431.
 The purpose of this chapter is to assure truthful and adequate disclosure of all material and relevant information in the advertising which solicits persons to file workers’ compensation claims or to engage or consult counsel or a medical care provider or clinic to consider a workers’ compensation claim.

5432.
 (a)  Any advertisement which solicits persons to file workers’ compensation claims or to engage or consult counsel or a medical care provider or clinic to consider a workers’ compensation claim in any newspaper, magazine, circular, form letter, or open publication, published, distributed, or circulated in this state, or on any billboard, card, label, transit advertisement or other written advertising medium shall state at the top or bottom on the front side or surface of the document in at least 12-point roman boldface type font, except for any billboard which shall be in type whose letters are 12 inches in height or any transit advertisement which shall be in type whose letters are seven inches in height and for any television announcement which shall be in 12-point roman boldface type font and appear in a dark background and remain on the screen for a minimum of five seconds and for any radio announcement which shall be read at an understandable pace with no loud music or sound effects, or both, to compete for the listener’s attention, the following:

NOTICE

Making a false or fraudulent workers’ compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.

(b)  Any television or radio announcement published or disseminated in this state which solicits persons to file workers’ compensation claims or to engage or consult counsel to consider a workers’ compensation claim under this code shall include the following spoken statement by the announcer of the advertisement:
“Making a false or fraudulent workers’ compensation claim is a felony subject to up to 5 years in prison or a fine of up to $50,000 or double the value of the fraud, whichever is greater, or by both imprisonment and fine.”

(c)  This chapter does not supersede or repeal any regulation which governs advertising under this code and those regulations shall continue to be in force in addition to this chapter.
(d)  For purposes of subdivisions (a) and (b), the notice or statement shall be written or spoken in English. In those cases where the preponderance of the listening or reading public receives information other than in the English language, the written notice or spoken statement shall be in those other languages.

5433.
 (a)  Any advertisement or other device designed to produce leads based on a response from a person to file a workers’ compensation claim or to engage or consult counsel or a medical care provider or clinic shall disclose that an agent may contact the individual if that is the fact. In addition, an individual who makes contact with a person as a result of acquiring that individual’s name from a lead generating device shall disclose that fact in the initial contact with that person.
(b)  No person shall solicit persons to file a workers’ compensation claim or to engage or consult counsel or a medical care provider or clinic to consider a workers’ compensation claim through the use of a true or fictitious name which is deceptive or misleading with regard to the status, character, or proprietary or representative capacity of the entity or person, or to the true purpose of the advertisement.
(c)  For purposes of this section, an advertisement includes a solicitation in any newspaper, magazine, circular, form letter, or open publication, published, distributed, or circulated in this state, or on any billboard, card, label, transit advertisement, or other written advertising medium, and includes envelopes, stationary, business cards, or other material designed to encourage the filing of a workers’ compensation claim.
(d)  Advertisements shall not employ words, initials, letters, symbols, or other devices which are so similar to those used by governmental agencies, a nonprofit or charitable institution, or other entity that they could have the capacity or tendency to mislead the public. Examples of misleading materials include, but are not limited to, those which imply any of the following:
(1)  The advertiser is in some way provided by or is endorsed by a governmental agency or charitable institution.
(2)  The advertisement is the same as, is connected with, or endorsed by a governmental agency or charitable institution.
(e)  Advertisements may not use the name of a state or political subdivision thereof in an advertising solicitation.
(f)  Advertisements may not use any name, service mark, slogan, symbol, or any device in any manner which implies that the advertiser, or any person or entity associated with the advertiser, or that any agency who may call upon the person in response to the advertisement, is connected with a governmental agency.
(g)  Advertisements may not imply that the reader, listener, or viewer may lose a right or privilege or benefits under federal, state, or local law if he or she fails to respond to the advertisement.

5434.
 (a)  Any advertiser who violates Section 5431 or 5432 is guilty of a misdemeanor.
(b)  For the purposes of this chapter, “advertiser” means any person who provides workers’ compensation claims services which are described in the written or broadcast advertisements, any person to whom persons solicited by the advertisements are directed to for inquiries or the provision of workers’ compensation claims related services, or any person paying for the preparation, broadcast, printing, dissemination, or placement of the advertisements.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII  B of the California Constitution because the only costs which may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, changes the definition of a crime or infraction, changes the penalty for a crime or infraction, or eliminates a crime or infraction. Notwithstanding Section 17580 of the Government Code, unless otherwise specified in this act, the provisions of this act shall become operative on the same date that the act takes effect pursuant to the California Constitution.