Brand new law! The need to market health care reform.

• Author: Sage, William M.

The most serious problem with the Patient Protection and Affordable Care Act (PPACA) is not its contents but its packaging. Because it requires significant departures from business as usual in health insurance, health care delivery, and health behavior, PPACA is unlikely to succeed unless Americans feel a shared stake in its success. Unfortunately, the new law has been branded only by its opponents. Neither the Obama Administration nor its congressional allies have effectively communicated the law's key elements to the public. Most surprisingly, the groundbreaking program of near-universal health coverage that PPACA creates does not have a name. This Article explores the process of branding major American social legislation such as PPACA and suggests a strategy for improving public understanding and building loyalty. Legal brand equity, like its commercial counterpart,, implies a functional, emotional, and expressive relationship between the law and its intended beneficiaries. Accordingly, an effective marketing strategy for PPACA entails creating consistent expectations regarding the law's goals and performance, and ensuring that those expectations are met.

INTRODUCTION I. BRANDING SOCIAL CHANGE II. LEGISLATIVE MARKETING III. WHY THE SOFT SELL? IV. STEP 1: EDUCATING AMERICANS ABOUT HEALTH REFORM V. STEP 2: NAMING THE NEW NATIONAL PROGRAM OF NEAR-UNIVERSAL COVERAGE VI. STEP 3: GOING FROM NAME TO BRAND A. Elements of Brand Equity B. Awareness C. Loyalty D. Perceived Quality E. Associations F. Protecting the Brand CONCLUSION You've got to Ac-cent-tchu-ate the positive, E-lim-mi-nate the negative, And latch on to the affirmative-- Don't mess with Mister In-Between! You've got to spread joy Up to the maximum, Bring gloom down to the minimum, Have faith, or pandemonium Li'ble to walk upon the scene! To illustrate my last remark, Jonah in the whale, Noah in the ark, What did they do Just when ev'rything looked so dark? "Man," they said, "We'd better Ac-cent-tchu-ate the positive, E-lim-mi-nate the negative, And latch on To the affirmative, Don't mess with Mister In-Between-- No, don't mess with Mister In-Between!" --Johnny Mercer (1) INTRODUCTION

Overconfidence is central to the American political psyche. Notwithstanding the length and complexity of the Patient Protection and Affordable Care Act (PPACA), (2) opinions as to the merits of the recently enacted health reform law are as strongly held as they are widely divergent. In a recent poll, public opinion regarding repeal of the law--an action newly elected Republican members of Congress have urged--remained polarized. (3) An overwhelming majority of Republican respondents favored repeal, while Democratic resistance to repeal was nearly as strong. (4) Independent voters were divided. (5) Strikingly, only 2-4% of surveyed voters in each party demographic declared themselves "not sure." (6)

Improving understanding of the new law is an obvious first step toward building support for it. Indeed, the Obama Administration has worked hard to provide accessible information about PPACA. The Administration even created a comprehensive website, www.HealthCare.gov. (7) This website connects people to new and improved tools for evaluating their health and health care options, such as "Compare Care Quality," a Bush Administration initiatives that provides patients with comparative information about hospitals and physicians, including formal quality metrics. (9)

1. BRANDING SOCIAL CHANGE

   A key piece of the health reform puzzle is still missing from this approach. The American public must debate, resolve, and ultimately share a collective meaning of health and medical care in our society. Neither partisanship nor ideology need disappear. But public understanding must encompass health and health care as an attribute of citizenship, not merely as a personal choice and associated expense. Social solidarity is not alien to our polity. However, it is a less familiar construct for how we view our health care system than for how we approach such matters as the privilege of the government to tax and spend generally. (10) Awakening ourselves to its critical importance in health is an essential aspect of educating the public about PPACA. (11)

   The Obama Administration has shown little interest in guiding the evolution of public opinion by creating an ongoing relationship between the law and the public--in other words, by imagining health reform as a "brand." Brand marketing admittedly is an unusual focus for legal scholarship. Still, legislative branding is an overlooked aspect of social change, especially given the many features of American government that favor inaction in domestic policy. (12)

   The Administration's website justifies and explains PPACA in the following limited fashion:

   Reforms under the Affordable Care Act brought an end to some of the worst abuses of the insurance industry. These reforms have given Americans new rights and benefits, by helping more children get health coverage, ending lifetime and most annual limits on care, allowing young adults under 26 to stay on their parent's [sic] health insurance, and giving patients access to recommended preventive services without cost. Many other new benefits of the law have already taken effect, including 50% discounts on brand-name drugs for seniors in the Medicare "donut hole," and tax credits for small businesses that provide insurance for employees. More rights, protections and benefits for Americans are on the way now through 2014. (13) This summary is reasonably informative, but it is framed in bland terms (for example, "rights, protections and benefits"), offers largely disconnected examples, and positions PPACA mainly as a response to a familiar but not wholly plausible villain: private health insurers.

   Glaringly, neither the summary of PPACA on the Administration's website, (14) nor the more detailed explanation of the law that the government has made available, confers a name on the nation's groundbreaking new program of near-universal health coverage or fosters a connection between that program and the beliefs and behaviors of its intended beneficiaries.

   Basic marketing theory requires at least these additional steps. A successful branding effort involves more than education. Educating the public about PPACA answers the question, "What is in the law?" and perhaps the follow-on, "Why is it there?" Education is indeed important to PPACA's long-term success, but education alone does not respond to the next questions, "Why should I care?" and "What should I do?" These answers are provided in the course of forming and nurturing an ongoing relationship between the program and the public. This process begins with a name and continues with a marketing campaign that, if all goes well, strikes a resonant chord that builds into a chorus of approval and engagement.

2. LEGISLATIVE MARKETING

   Political marketing and public policy marketing have points in common with commercial marketing but are not identical to it. The closest analogy is between marketing a product or service and marketing a candidate, which substitutes the act of voting for the act of purchasing. If done successfully, candidate marketing continues to foster loyalty to the individual's brand and increases the likelihood of future votes. Marketing a political movement is similar because the grassroots activities of supportive individuals and groups continually reinforce the marketing message (although, if unguided, they can also distort that message). Marketing improvements in apolitical social outcomes, such as health, is harder because the desired action is a change in personal behavior, such as stopping smoking or increasing physical activity, but without an observable transaction as either an anchor or a metric. (15)

   Marketing a major social program that intertwines political and personal change has been done. Margaret Thatcher's Tory government in Great Britain furnishes a strong example. In the 1980s, Thatcher presided over the wholesale conversion of state-run industries to private ownership through public markets. (16) A key lesson from that program is that privatization did not begin with ideology, although beliefs eventually changed along with behavior. Another lesson is that successful branding is an evolutionary process, rather than something fully detailed in advance. This suggests that there is still plenty of time for the Obama Administration and its allies to develop and refine a brand strategy.

   The Tories recognized that substantial ideological support for privatization could not be achieved simply by indoctrinating large swaths of the British public to believe in free markets and then legislating based on that mandate. (17) Instead, broad, though certainly not universal, support for the Thatcherite agenda grew out of personal experience with purchasing shares in newly privatized companies, such as British Telecom. (18) Through clever, nimble advertising campaigns, the Tories transformed privatization from an elitist academic intervention that threatened to pillage iconic British institutions employing millions into an exercise in populist self-interest--the ordinary citizen making money by doing his civic duty. This tone was captured perfectly by the "Tell Sid" advertising campaign to create word-of-mouth support for the initial share offering in British Gas. (19) Because this policy change was accompanied by an identifiable transaction--similar in some ways to the initial purchase of insurance through PPACA's health insurance exchanges (20)--a commercial marketing strategy seemed appropriate.

   In American health care, an illustrative experience involves Medicaid in the 1980s and 1990s. As longstanding state legal prohibitions on selective contracting between health insurers and medical providers eroded, largely Republican presidential administrations sought innovative ways to constrain the costs of entitlement programs. Many states...