Healthcare is a highly competitive market. Healthcare companies are hiring marketing teams to lure customers to their facility. This will invariably require making statements regarding the quality of your services and how your services are better than your competitors. Problems will arise if these ads cause patients or their families to expect more than what is or even can be offered. There are many scenarios that could result in claims of false advertising under §43(a) of the Lanham Act. In addition, the Federal Trade Commission (FTC) and the National Advertising Division (NAD) of the Council of Better Business Bureaus have guidelines for what companies may include within their marketing programs. Today, however, we will be looking at “puffery.”
Puffery is generally a subjective exaggeration, even blustering or boasting, upon which no reasonable consumer would rely – “Our hamburgers are the best in the world!” Puffery often uses exaggerations so excessive that they become comical – “Our hamburgers are so good they will bring you to tears!”
Thus, non-actionable puffery will generally involve vague, highly subjective claims regarding the superiority of the service or products being sold. However, clarifying what may be found to be mere puffery rather than an actionable false claim can be a difficult task. The result will often turn on the totality of the advertisement or even the entire advertising campaign. Ultimately a court will focus on whether a reasonable consumer of the services would view the accused claim as stating a verifiable fact – “We have the healthiest meals anywhere!” or whether a reasonable consumer would view the comment as expressing an unverifiable opinion – “We serve our patients the tastiest meals in the city!” The first statement can perhaps be factually verified, and if not true could be an actionable false claim, whereas the second claim regarding tastiness is more a matter of opinion and is more likely to be considered puffery.
A very general rule of thumb is whether or not the statement is a subjective opinion (We have the best nurses anywhere!) or a statement of fact (Our nurses score highest in satisfaction surveys). This first statement is arguably puffery as it is hard to quantify “best” and no specific area or skill is identified. The second statement, however, reads more like a factual statement – there was a survey conducted and the advertiser’s nurses were on top. If there was no survey comparing nurse satisfaction between hospitals, this statement could result in liability.
Further, statements made one on one to potential customers are more likely to NOT be puffery, especially if the statements are made in response to specific questions or concerns raised by the potential customers. For example, the statement regarding having the tastiest meals in the city might become actionable if made to a specific family concerned about a patient’s refusal to eat “hospital food.” In fact, even if made in a general advertisement, a claim to tasty food may be problematic if made in the context of ads regarding treatments known to cause loss of appetite.
Puffery is an advertising construct that supports the adage “buyer beware.” In many product and service areas it is almost expected that the salesman will “exaggerate” the quality of the product they’re selling. This obvious exaggeration will generally be recognized as “puffery.” The question is of course where is the line over which puffery becomes false advertising? And is that line different for healthcare services and products than it is for hamburgers and used cars?
Puffery is a popular excuse in advertising law for making statements that cannot be factually supported. Puffery is a nonbinding promise concerning the quality of your goods or services and is used to defend against a claim of false advertising or unfair competition. So, if your marketing department is defending a statement made in one your ads as puffery, you may be at risk of a claim of false advertising. Even if you are successful in your claim that the accused statement was puffery, you will have still had to undergo the cost and negative press involved in the claim.
Our Insight. Your Advantage. Puffery should never be viewed as completely “safe” in the healthcare arena. Any use of puffery should be looked at closely to determine how important it is in the success of the ad campaign and to determine whether any and all reasonable persons in the market for the services being offered would recognize the statement as an obvious exaggeration that is not being made for its truth.