The failure to comply with National Advertising Division (“NAD”) review processes typically results in a referral to the Federal Trade Commission (“FTC”). This strong enforcement deterrent results in a reported 97% compliance rate with NAD decisions. Recently, NAD has been expanding the agencies to which it refers advertisers that have failed to comply with its rulings or participate in its processes. As discussed below, NAD recently referred the advertising claims of a crisis pregnancy center to the Massachusetts Attorney General for possible enforcement action. In addition, NAD has developed a referral relationship with leading social media platforms, such as Meta, resulting in prompt enforcement of NAD’s recommendations.
I recently had the privilege of co-presenting on legal issues involving “green” claims at ACI’s 2024 Food Regulation Conference. A notable developing trend that was discussed during our panel is the increasing scrutiny of aspirational environmental benefit claims, such as a pledge to be carbon free by 2050.
Andrew Lustigman, Chair of Olshan's Advertising, Marketing & Promotion's Group and Co-Chair of the firm’s Brand Management & Protection Group, will speak on the panel “Food Marketing, Advertising and Promotion Essentials: Ensuring Claims Compliancy and Meeting Substantiation Standards Relative to Health, Nutrition, Structure and Function” as part of ACI’s Food Law and Regulation Boot Camp virtual conference on July 19, 2023, at 1:45pm (CT). The panel will explore the relationship between food product labels and advertising and promotion, how to distinguish ...
The National Advertising Division’s (“NAD”) streamlined Fast-Track SWIFT (Single Well-Defined Issue Fast Track) process is an expedited process by which single-issue truth in advertising claims in national advertising may be reviewed and assessed. The popularity of SWIFT challenges, which are structured to resolve designated challenges expeditiously, has been continuing to grow as competitors take advantage of the streamlined process.
The National Advertising Division of the Council of Better Business Bureaus (“NAD”) recently reviewed claims made by subscription-based meal kit company Blue Apron related to its subscription cancellation process. In doing so, NAD has provided additional guidance as to what is expected from companies that enroll customers in automatically renewing continuity programs from a self-regulatory perspective.
Andrew Lustigman, head of Olshan’s Advertising, Marketing & Promotions Practice Group, was interviewed on Round Table Group’s Engaging Experts podcast in an episode entitled “How to Effectively Deal With False Advertising Disputes.” The episode explores various options for responding to false advertising claims and examines the variety of directions a business can take regarding an advertising dispute. Topics include how lawsuits concerning false representations have been filed under the Lanham Act, the founding of the National Advertising Division (NAD), strategies in a well-constructed cease and desist letter, and more.
In a quintessential Covid-era case, following part of its routine monitoring program, the National Advertising Division of the Better Business Bureau (“NAD”) requested substantiation for claims made by Ontel Products Corporation in respect of its “Safe & Healthy” branded portable UV-C sanitizing light.
Olshan Advertising attorneys Andrew Lustigman, Scott Shaffer, Mary Grieco and Morgan Spina presented a webinar for the Consumer Protection Monthly Update hosted by the American Bar Association Antitrust Law Section.
To expedite advertising challenges on discrete issues, the National Advertising Division (NAD) of the Better Business Bureau has launched a new fast-track process. The new process will resolve eligible matters within 20 business days from initiation of the challenge.
The National Advertising Division of the Council of Better Business Bureaus (“NAD”) recently recommended that Bayer Healthcare LLC (“Bayer” or the “advertiser”) discontinue particular comparative superiority claims for Aleve, including “Proven Better on Pain than Tylenol,” following a challenge by Johnson & Johnson Consumer Inc., maker of Tylenol products. The decision shows the scrutiny NAD will give to broad and unqualified superior efficacy claims.
Marketers frequently tout “limited time” bonus offers that appear to continue for an inordinate amount of time. A recent decision of the National Advertising Division ("NAD") of the Council of Better Business Bureaus relating to such an offer makes clear that a “limited time” offer must indeed be so.
The National Advertising Division of the Better Business Bureau (“NAD”) recently found two separate “#1” claims to be sufficiently supported, thereby providing valuable insight to advertisers regarding the type and degree of information required to support such a claim.
The use of consumer perception surveys before the National Advertising Division (“NAD”) is an important tool for advertisers who are challenging and defending advertisements. NAD often expresses a wish to see surveys in their opinions, and surveys are one way for NAD to determine the messages conveyed to consumers in advertisements. On December 7th, the Advertising Self-Regulatory Counsel (“ASRC”) hosted an informative conference on consumer perception surveys which gave insight into the use of such surveys before NAD over the last five years and guidance into what makes a good survey from experts and from the perspective of NAD.
Olshan Advertising attorneys Andrew Lustigman, Safia Anand, Claudia Dubón, Katelyn Patton, and Morgan Spina will give a telephonic presentation for the Consumer Protection Monthly Update on June 18, 2018, hosted by the American Bar Association. This monthly update, which will be moderated by Andrew Lustigman, will summarize the significant developments in consumer protection law that occurred during May 2018. The presentation will include cases, settlements, and other initiatives at the federal and state levels, as well as consumer class actions, Lanham Act litigation, and National Advertising Division case decisions.
A panel of the National Advertising Review Board (“NARB”) has recommended that Too Faced Cosmetics, LLC (“Too Faced”) discontinue both a claim that its mascara provides for “1,944% more volume” and “before” and “after” photographs displayed on product packaging and online videos advertising their “Better Than Sex” mascaras.
In a departure from past practice, NAD found that GSK Consumer Health (“GSK”) can support certain claims after Proctor & Gamble Company (“P&G”) successfully petitioned NAD to re-open a case heard by NAD in 1994.
A recent decision highlights the risk in relying on confidential support, as well the difficulty in substantiating extraordinary cosmetic benefit claims. Benefit Cosmetics recently challenged Too Faced Cosmetics’ advertising before NAD. The challenge was focused on Too Faced’s mascara advertising claims relating to clinic studies, the degree to which the product increased eyelash volume, and the representations made in the advertiser’s use of “before” and “after” comparative photographic demonstrations.
S.C. Johnson recently brought a challenge before NAD claiming the phrase “World’s Best Glass Cleaner” claim on PLZ Aeroscience’s (“PLZ”) “Sprayway” glass cleaning product packaging was unsubstantiated.
Laura Brett just announced as the new Director of the National Advertising Division (NAD)
Changes to the NAD’s procedures have been generally positive and have improved the efficiency of the self-regulatory process
Nautilus advertised its Bowflex TreadClimber exerciser as promoting substantial weight loss. NAD recommended that the broad claim of “All They Had To Do Was Walk” should be discontinued because its weight loss claims failed to sufficiently encompass the need to diet.
Lee Peeler, the President and CEO of the Advertising Self-Regulatory Council (ASRC) and Executive Vice President, National Advertising, Council of Better Business Bureaus (CBBB) recently announced that Andrea Levine, who has headed NAD for 20 years, is set to retire.
NAD has been at the forefront of scrutinizing social media content for compliance with applicable advertising standards. Its recent decisions challenging Fit Tea’s social media advertising, including bringing a proceeding against three of the Kardashians, exemplifies the reality that both brands and influencers are potential liable for improper claims.
On September 26-27, 2016 the Advertising Self-Regulatory Council held their NAD Annual Conference.
Advertisers may believe that claims contained in light-hearted or humorous advertising are immune from challenge.
Andrew Lustigman was an Editor for Self-Regulation of Advertising in the United States: An Assessment of the National Advertising Division.
Partners Andrew Lustigman and Howard Smith authored an article published by Inside Counsel entitled, "When self-regulatory remedies can be the better alternative."
On September 30 - October 2, 2013 the Advertising Self-Regulatory Council will hold their NAD, CARU, and ERSP Annual Conferences.
The National Advertising Division ("NAD") recently recommended that Toys "R" Us modify or discontinue a price-matching claim advertised.
On March 27, 2013, 12:30 - 1:30 p.m. EDT., Olshan will present the webinar Competitor Advertising Challenges: Lanham Act vs. NAD. CLE credit will be available for this complimentary program which will offer a practical analysis of alternative forums for addressing competitor advertising claims.