Air Methods Appeals National Advertising Division Decision

Air Methods Appeals National Advertising Division Decision

18-Nov-2021 Source: Air Methods

The National Advertising Division (NAD) of BBB National Programs recommended that Air Methods Corporation (Air Methods) modify or discontinue certain advertising claims for its Air Ambulance Transport. Air Methods will appeal that decision. The claims at issue were challenged by Global Medical Response, Inc. (GMR) and Air Evac EMS, Inc., a competitor in the emergency air medical transport services industry.

In many areas of the country, particularly in rural areas, access to advanced medical services through ground ambulance is difficult, and air medical transport services use helicopters to transport patients to hospitals and burn centers in a timely manner. The challenger and advertiser maintain fleets of helicopters with trained medical personnel that are dispatched at the request of first responders, hospitals, or physicians.

Many of the challenged advertising claims relate to membership programs and fees associated with the air medical transport of patients. Notably, the challenger offers a subscription membership program, but Air Methods does not.

NAD determined that three express claims reasonably conveyed the message that Air Methods’ competitors will make patient care decisions based on whether the consumer has a membership. Because there was nothing in the record to support the message that membership is required to transport patients to hospitals or burn centers at the request of a first responder, NAD recommended that the advertiser discontinue the following claims:

  • “Living Shouldn’t Require a Membership”
  • “No membership required”
  • “Patient care decisions should never be made on the basis of membership”

NAD recommended that the advertiser modify its advertising to avoid conveying the unsupported message that air medical transport services that offer a membership program will not provide life-saving emergency medical transportation to patients unless they are members.

Further, NAD found that, in context, the claim “we’ve seen lower costs and better outcomes through our Patient Advocacy program and by working to increase insurance coverage for our services,” could be understood by consumers to mean that Air Methods offers lower costs and better outcomes (including medical outcomes) over all competitors that offer membership programs. Therefore, NAD recommended that the advertiser modify the claim “lower costs and better outcomes” to make clear what “outcome” means and that Air Methods specify the basis of the cost comparison.

NAD recommended that Air Methods discontinue claims that:

  • “Across the country, patients with memberships have had to sue”
  • “Memberships don’t actually provide you with the financial protection that they claim”

NAD concluded that the use of these claims in conjunction with referencing three lawsuits from three different states reasonably conveys a message that this is a typical experience of consumers. NAD noted that there was no evidence in the record that it is typical for consumers to bring lawsuits or that GMR memberships, contrary to its claims, do not provide financial protection from the costs of air transport. Although NAD recommended the challenged claims be discontinued, it stated that nothing in its decision prevents the advertiser from making supported claims about the financial protection provided by memberships.

Regarding the claim “are the funds collected from your community for memberships used to serve your community? . . . Memberships are just a money-making scheme,” NAD found that it reasonably conveys a message that a substantial portion of GMR’s membership funds are used for lobbying instead of serving the community – a message that was not supported by the evidence in the record. Accordingly, NAD recommended that the claim be discontinued and that the advertiser avoid conveying such a message.

NAD also recommended that Air Methods discontinue the claim “don’t fall victim to membership deception and money-making fraudsters.” Although NAD recognized the advertiser’s desire to launch an educational campaign, NAD noted that educating consumers about a competitor’s products or services can criticize or disparage the product or service but should avoid false disparagement that could mislead consumers.

No Surprises Act
The No Surprises Act, passed by Congress in December 2020, will prohibit balance billing for patients with private commercial insurance or ERISA plans.

NAD recommended that the advertiser discontinue claims that the No Surprises Act:

  • “Effectively eliminates the need for an air medical membership”
  • “Eliminates the need for an air medical membership”

NAD determined that such claims were not supported because some consumers will not be protected by the No Surprises Act and would, therefore, benefit from memberships. NAD also recommended that Air Methods modify its advertising to avoid conveying the message that the No Surprises act is already effective (it is not scheduled to become effective until January 2022).

NAD determined that the claim “reduce our patients’ out-of-pocket expenses to an average of $200*, which includes copays and deductibles,” reasonably conveys a message that $200 is the average initial amount for which a consumer would be responsible, not the average costs after working through the settlement process with Air Methods. Because Air Methods provided no evidence of the average initial billing amount, and the evidence showed that the actual average costs were greater than $200, NAD recommended that the advertiser modify the claim to make clear whether it is referring to the initial patient responsibility or the final settlement amount and to provide a more accurate average dollar figure that reflects such amount.

In its advertiser statement, Air Methods stated that it will appeal NAD’s decision. The advertiser expressed its belief that “NAD erred in failing to treat several of the claims as . . . opinion or puffery” and Air Methods stated that it “respectfully disagrees with NAD’s determinations that insufficient substantiation was provided for its claims.” Such appeals of NAD decisions are made to the BBB National Programs’ National Advertising Review Board (NARB), the appellate-level truth-in-advertising body of BBB National Programs.

All BBB National Programs case decision summaries can be found in the case decision library. For the full text of NAD, NARB, and CARU decisions, subscribe to the online archive.

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