National Advertising Review Board Recommends Air Methods Modify or Discontinue Certain Claims; Upholds Appeal for Others

NEW YORK, Jan. 20, 2022 /PRNewswire/ -- A panel of the National Advertising Review Board (NARB), the appellate advertising law body of BBB National Programs, has recommended that Air Methods Corporation modify or discontinue certain advertising claims for its Air Ambulance Transport service. The panel also upheld the advertiser's appeal as to other claims.

The advertising at issue had been challenged by Global Medical Response, Inc. and its subsidiary, Air Evac EMS, Inc. (collectively, GMR), before the National Advertising Division (NAD). Following NAD's decision (Case No. 7006), Air Methods appealed NAD's recommendations.

In many areas of the U.S., particularly in rural areas, access to advanced medical services through ground ambulance transport is limited or non-existent. In those areas, air medical transport services use helicopters to transport patients to hospitals and burn centers in a timely manner. The parties to this proceeding and their competitors maintain fleets of helicopters staffed with trained medical personnel who are dispatched at the request of first responders, hospitals, or physicians.

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

Membership Claims

GMR challenged several Air Methods express claims concerning memberships. The NARB panel considered whether such claims falsely imply that air medical transport businesses with membership plans (including GMR) decline to provide emergency medical transportation to patients who are not members.

The NARB panel agreed with NAD that the claims "Living Shouldn't Require a Membership" and "Patient care decisions should never be made on the basis of membership" imply that a competitor emergency medical service will not provide service to a patient unless the patient has a membership with the competitor. Because it is not disputed that emergency medical services are not permitted by law to decline to provide service when summoned by medical professionals, the panel concluded that these two claims should be discontinued.

However, the NARB panel agreed with the advertiser that what it refers to as a slogan, "No membership required," could, depending on context, not convey a message about competitors. Therefore, the panel recommended that this slogan only be used in a context in which it is clearly referring to the advertiser's own service and not to the business practices of competitors.

Claims Concerning the No Surprises Act

The No Surprises Act, passed by Congress in December 2020, prohibits balance billing for patients with private commercial insurance or ERISA plans as of January 1, 2022.

The NARB panel concluded, as did NAD, that Air Methods' advertising was misleading and implied to reasonable consumers that the No Surprises Act was already effective. Although this issue could soon be moot due to the effective date of the Act, the NARB panel recommended that the advertiser modify its references to the No Surprises Act to eliminate any implication that the Act was effective before January 1, 2022.

Further, regarding claims that the No Surprises Act "eliminates" and "effectively eliminates" the need for an air medical membership, the NARB panel found that the advertiser could modify its claims to "advise consumers that the Act makes medical memberships less appealing or cost effective." The NARB panel recommended that such references be modified to avoid the implication that memberships provide no financial benefits to members and to accurately describe the protections afforded by the Act.

The $200 Claim

Regarding the claim that dropping its membership plan has enabled Air Methods to reduce its "patients' out-of-pocket expenses to an average of $200*, which includes copays and deductibles," the advertiser withdrew its appeal concerning the $200 figure. In addition, the NARB panel agreed with the advertiser that "out-of-pocket" refers to the amount a patient ultimately pays (not the initial amount billed by Air Methods to patients). Therefore, in a departure from NAD's conclusion in the underlying decision, the panel found that use of the term "out-of-pocket" was not misleading.

Lower Costs/Better Outcome Claim

The NARB panel agreed with NAD that the terms "lower costs" and "better outcomes" are ambiguous as used in 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." The panel concluded that the phrase "better outcomes" can be interpreted by reasonable consumers as referring to better medical outcomes and recommended that it be modified to clarify that it is instead referring to financial outcomes.

Further, the NARB panel recommended that the "lower costs and better outcomes" claim be modified to make it clear that the comparison is to prior Air Methods experiences, and not in comparison to competitors.

Financial Protection Claims

The NARB panel recommended that Air Methods discontinue the claims:

• "Across the country, patients with memberships have had to sue."
• "Memberships don't actually provide you with the financial protection they claim."

The panel noted that while Air Methods is free to present arguments to consumers as to why they should conclude that a membership plan is not the right financial decision for them, the advertiser has not supported the assertion that its competitors are misleading the public concerning the benefits of membership plans.

The panel also agreed with NAD that the reference to lawsuits conveys the unsupported message that such lawsuits are common or typical.

Membership Fees for Lobbying

The NARB panel agreed with NAD that the claim "are the funds collected from your community for memberships used to serve your community?" conveys the implied message to reasonable consumers that substantial portions of competitors' membership fees are used for lobbying purposes and not to support operations. Therefore, the panel recommended that the claim be discontinued.

The panel also recommended that Air Methods discontinue the claim that "memberships are just a money-making scheme" noting that the sentence communicates illegal or unethical conduct not documented in the record.

Finally, the NARB panel recommended that the advertiser avoid conveying the message that a substantial portion of the funds GMR receives from membership fees is used to fund lobbying to retain memberships.

Membership Deception and Fraudulent Claims

Regarding the claim "don't fall victim to membership deception and money-making fraudsters – say NO to air medical memberships," the NARB panel recommended that the first half of the sentence be discontinued because there was no evidence in the record to support the accusation of legal or ethical misconduct communicated by Air Methods' reference to competitors as "fraudsters."

However, the NARB panel recommended that the advertiser need only modify, rather than discontinue, use of the claim "say NO to air medical memberships" by eliminating any implication that memberships are fraudulent, deceptive, or provide no financial benefits to members.

Air Methods stated that it "will comply with NARB's decision." Further, the advertiser stated that although it "respectfully disagrees" with certain of NARB's findings, "we support the self-regulatory process and will consider NAD's and NARB's recommendations with respect to future advertising."

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.

About BBB National Programs: BBB National Programs is where businesses turn to enhance consumer trust and consumers are heard. The non-profit organization creates a fairer playing field for businesses and a better experience for consumers through the development and delivery of effective third-party accountability and dispute resolution programs. Embracing its role as an independent organization since the restructuring of the Council of Better Business Bureaus in June 2019, BBB National Programs today oversees more than a dozen leading national industry self-regulation programs, and continues to evolve its work and grow its impact by providing business guidance and fostering best practices in arenas such as advertising, child-directed marketing, and privacy. To learn more, visit bbbprograms.org.

About the National Advertising Review Board (NARB): The National Advertising Review Board (NARB) is the appellate body for BBB National Programs' advertising self-regulatory programs. NARB's panel members include 85 distinguished volunteer professionals from the national advertising industry, agencies, and public members, such as academics and former members of the public sector. NARB serves as a layer of independent industry peer review that helps engender trust and compliance in NAD, CARU, and DSSRC matters. 

SOURCE BBB National Programs