NAD issued an interesting case regarding the scope of its jurisdiction to review national ads that the advertiser promises were discontinued prior to the initiation of the challenge. The decision comes out of the never-ending cable wars and involved claims of Internet service speed. The challenger alleged that claims implied a falsely disparaging message. The challenger did not respond to the substance of the challenge but simply asserted NAD lacked jurisdiction because the TV ad in question had run its course a few weeks prior to the start of the challenge. NAD determined it should decide the case because the advertiser only promised not to rerun the ad at issue and made no commitment as far as repeating the claims. The challenger argued that the claims at issue were implied and so the context of the ad was critical. In other words, in a different context the claims may be substantiated.
A good lesson here is that after deciding the question of jurisdiction, NAD did not give the advertiser additional time to defend the merits of the claims. The decision simply concluded that NAD had jurisdiction and it agreed it was proper to discontinue the ad in question based on the record before it. The lesson here is that NAD continues to interpret its rules broadly and typically will only find it lacks jurisdiction in very clear cases. Further, for any advertiser making the jurisdictional argument think long and hard as to whether you want to rest on this argument or make best efforts alternatively to defend the claims on the merits.