In a brief from Lexology, Kathleen Rheintgen, JD, senior counsel with Husch Blackwell, says healthcare marketing invariably requires some statements about how one hospital’s services are better than those of its competitors. Problems come up when these ads cause patients or their families to expect more than what the hospital does or can offer, though.
Puffery consists of subjective exaggerations, even boasting, that reasonable consumers cannot rely upon. Non-actionable puffery involves vague, highly subjective claims about the superiority of a service. Yet, despite these definitions, distinguishing puffery from false claims can still be difficult, says Ms. Rheintgen.
The determination often rests on the totality of the ad, or even the entire ad campaign, and whether a reasonable consumer would view the statement as a fact or as an opinion. Ms. Rheintgen used two examples: “We have the best nurses anywhere!” and “Our nurses score highest in satisfaction surveys!”
The first claim is arguably puffery, as it is hard to quantify “best,” and no specific area or skill is identified. Ms. Rheintgen says the second statement could be factually verified. If not true, or if there was no survey comparing nurse satisfaction among hospitals, it could be an actionable false claim.
Ms. Rheintgen points out that, in the end, the line between puffery and a false claim is very thin.
“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,” she wrote. “So, if your marketing department is defending a statement made in an ad 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 litigation process.”
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