By Dan Miers
Chief Strategy Officer
SPM Marketing and Communications
A negligence case against a care provider took an interesting turn. The plaintiff included in their claim the allegation that the provider deliberately made false representations to the public by using phrases such as ‘best’ or ‘life-changing medicine’ in advertisements. The suit alleges that this kind of claim is fraud and the plaintiff should be compensated.
To compound this story further, the provider’s lawyers rebuked the fraud claim arguing, “the phrases used in ads are ‘puffery,’ or exaggerated commendation used for promotional purposes.” These broad exaggerations do not represent actual and specific claims about quality, they state. Courts have found that automobile maker slogans, such as “Built Ford Tough” or “Like a Rock,” or BodyArmor’s claims of “Superior Hydration” are indeed “puffery” that a reasonable consumer would not interpret as a factual statement of a measurable quality.
Whether or not this puffery is legally defensible, there are two matters of vital importance to hospital and health care marketers in this story: ethics and marketing leadership. These are always important, but now more than ever, we need to be a trusted voice when we talk about masking, physical distancing and vaccinations. We can’t let what we say be classified as “puffery.”
Ethics
Ethics has been at the foundation of our professional conversation from its earliest days. In 1975, the Federal Trade Commission (FTC) decided to apply antitrust laws to health care, giving birth to the wave of health care competition that we know today. “Concepts of marketing and advertising began to be viewed as necessities in an industry of overcapacity and declining governmental reimbursements.” In 1977, the American Hospital Association (AHA) provided its initial guidelines for hospital advertising, “…benchmarks to ensure that hospitals maintain their ethical sense of public accountability and they conduct communications activities with fairness, honesty, accuracy and impartiality.”
Over the years, the Society for Health Care Strategy and Market Development (SHSMD) of the AHA has evolved and refined these guidelines. Most recently, in 2010 a SHSMD task force composed, “Principles and Practices for Marketing Communications in Hospitals and Health Systems,” a white paper that provides valuable relevant guidance. After acknowledging how the marketer’s toolkit had evolved to that point, the Advisory states, “It is the responsibility of marketing communications professionals to ensure that all marketing communications generated by hospitals are factually supportable and are presented with truthfulness and accuracy.” The Advisory provides a 12-point checklist of ethical considerations, including:
- Are superlatives, such as first, most, only, and best-in-class only used when such claims can be substantiated?
- If quality measures are highlighted, are words such as safe, high(est), effective, painless, best, and top-quality used with caution and only when they can be verified and objectively substantiated?
- Are direct or implied comparisons between health care organizations made only when such claims can be objectively measured, documented, or proven?
After a 30-plus year health care career, this is where the rubber meets the road. Personal experience and peer-reviewed research have shown that not all health care organizations, providers, treatment plans and care support systems are the same. While the level of excellence at America’s health care institutions is generally high, some organizations are simply more equipped, better trained, more experienced and/or better prepared to accurately diagnose and better treat a patient’s problem than others. The differences that exist between health care providers can change the course of disease and recovery and even save lives.
Consumers have the right to know and understand these differences so they can participate in making informed choices. Our job as strategic health care marketers is to craft ethical communications to help them learn these differences.
One key step to ethically demonstrating exceptional performance and competence—spotlighted in the Advisory and deployed by leading strategic marketing professionals—is instituting a formal review process.
“It is recommended that hospitals and health systems consider instituting a formal process for substantiating claims, verifying data, and determining the appropriate permission needed to refer to sources used in marketing communications before the communications appears.”
Many organizations designate an internal team, consisting of marketing, in-house legal counsel, risk management and senior administrative and clinical leadership, to scrutinize advertising claims. This internal review discipline prompts documentation of a claims’ basis, its source and context. Personally, I can attest to the value of securing verifiable, peer-reviewed clinical research to support a claim of a distinction. Also, I have seen the rigor of the internal review process prevent unsubstantiated “organizational folklore” (e.g., “We played a crucial role in developing the XYZ vaccine.”) from exposing organizations to risk.
Guidelines like those offered by SHSMD provide the framework by which we can bring important organizational differences to light in an ethical manner. Period.
Marketing Leadership
Regarding marketing leadership, strategic marketers have a responsibility to educate and inspire their organization’s non-marketers to grasp their commitment to accuracy, honesty, and craft. It is one thing for a consumer to consider an advertiser’s claim “puffery.” It is an altogether different thing—as was done in this case—for a hospital to use “puffery” as a defense of their organization’s marketing. Such a stance has the potential to undermine the credibility of all the organization’s efforts to help inform and educate the communities they serve. The craft of marketing and advertising demands creating a careful blend of reason, information, emotion, and reward. We all know this is easier said than done, and done well, looks brilliant and effortless. Without appreciation for how difficult it is, and how seriously we all take the work to fuse those elements in an ethical way to the benefit of the consumer, we remain at risk as being agents of, “undue or exaggerated praise.”
While this case has only begun to make its way through the legal process, we as health care strategists, marketers, and communicators can recommit ourselves to our profession’s highest standards and ideals. Lives have always depended upon consumers trusting hospitals and other health care providers. Now, when trustworthiness so clearly matters not just to individuals but to the entire population, we cannot let our claims that masks are important, physical distancing is important, getting a COVID-19 vaccine is important be dismissed as puffery.