Publications: Legal Matters – False Marketing Could Cause Headaches Later

Question -

There is a lot of talk about not “promising Amore than you can offer” with regard to marketing materials, or else you could be sued. I want to make my facility sound as attractive as possible and will, frankly, tout it to the best of my ability. So where could I land in trouble, and are these complaints really actionable?

Answer -

Long-term care facilities that stretch the truth too far or omit key facts may face liability under a variety of legal theories.

All states have laws prohibiting misleading statements or omissions that would cause a reasonable consumer to choose one product over another. Misleading statements in marketing materials may result in state enforcement actions, lawsuits by dissatisfied residents alleging they were duped by misleading statements, and/or lawsuits from competing facilities for unfair competition. False advertising, however, should not be confused with mere “puffery” an exaggeration or boast that no reasonable consumer would rely upon in choosing a product, as opposed to a specific, measurable claim.

Various states require long-term care facilities to submit their marketing materials for review, and some require pre-approval. These materials may be brought out at the time of a facility’s state survey or inspection, and a finding that the advertising claims are false or misleading may result in adverse regulatory consequences.

False, misleading, exaggerated or unsubstantiated statements in marketing materials also may be damaging to a facility that the facility fell short of its own standards.

For the most part, a facility will not face liability if its marketing activities are truthful, not misleading and contain all required disclosures, if any.

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

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