The Advertising Self-Regulatory Council operates several self-regulatory programs including CARU, NAD and ERSP. Traditionally these have been thought of as distinct programs – CARU regulates marketing to children, ERSP regulates companies that market and sell their products electronically while NAD oversees most traditional national advertisers. While this compartmentalization is largely true, there is some overlap between ERSP and NAD as well as some differences in their procedures that could lead clients to think strategically about which venue to select for a self-regulatory challenge.
While ERSP’s jurisdiction extends to “electronic retailers,” many traditional advertisers either provide an opportunity to purchase their products online or offer consumers information on their website about locations where specific products can be purchased. In either case, the company would fall within ERSP’s definition of an “electronic retailer.” At the same time NAD has jurisdiction over any “national advertising” meaning that there can be not inconsiderable overlap between the two entities.
So if an advertiser finds itself able to choose between NAD and ERSP which should it select? Companies that have traditionally appeared before the NAD may find themselves more comfortable before a familiar audience but there are at least a few differences between the two organizations at least worth mentioning. Perhaps most importantly, ERSP, unlike NAD, permits anonymous challenges. And if you’re feeling burned by Ashley Madison, to date ERSP has not been the target of hackers determined to “out” challengers. However, any advertiser wishing to participate anonymously cannot be an active participant in ERSP’s review of the substantiation for the challenged claims. At the same time, NAD has an appeals process for both the challenger and advertiser while ERSP does not. If marketer does not agree to abide by ERSP’s recommendations, the matter will be referred to the appropriate government agency.
If time is of the essence, ERSP’s timeframes are also slightly compressed. While both NAD and ERSP operate on 15/10/10 day response cycles, NAD’s regulations reference business days while ERSP’s refer to calendar days. In addition, ERSP’s procedures anticipate that any meeting with staff will occur during the briefing cycle rather than after.
Finally, although money may not often be a factor in choosing a venue, the filing fees for ERSP are considerably cheaper ($1000 for Electronic Retailing Association members and $3500 for nonmembers versus $10,000 for CBBB members and up to $25,000 for nonmembers.)
Keep these differences in mind when advising your clients. Your options may be greater than you think.