Publications: Ask The Legal Expert - September 2006

With so many other legal and regulatory concerns, I now hear we have to be extra careful with marketing materials. Is that true?

Yes, a provider's marketing efforts can create serious legal issues. Marketing materials and statements may create a basis for plaintiffs' attorneys to allege, for example, breach of contract or warranty, discrimination, false advertising or violation of fair housing laws, as part of their complaints for malpractice and breach of statutory duty.

Plaintiffs often quote a provider's marketing materials, which often promote "highest quality" care of similar puffery, and turn them into "promises," "representations," or "warranties." They argue that a provider breached its "written contract" to provide the "highest quality" care. Even if marketing materials do not legally constitute a "contract," plaintiffs use them before the jury to make the provider look untruthful.

Similarly, marketing personnel and materials should avoid opining on tax consequences of refundable entrance fee deposits. Although it is all right for them to mention such tax issues, they should not give advice but rather direct people with those questions to their own tax or financial advisers. Marketing may also run into trouble with fair housing and discrimination laws. For example, marketing materials may not comply with such laws by using logs that, or "models" who, do not fairly reflect the demographics of the surrounding community.

To help avoid these types of issues, providers should have their legal counsel review their marketing materials to ensure that they comply with various laws, as well as to assure that their marketing puffery does not overstep marketing boundaries and become legal representations, warranties, promises or contracts that providers must live up to. The message should be clear:
Be careful how you market your facility.


Reproduced with permission from McKnight's Long-Term Care News

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