Last month, the National Advertising Division (NAD) launched its much-anticipated NAD Fast-Track SWIFT process (“Single Well-defined Issue Fast Track”). As we blogged previously, the Fast-Track SWIFT program reflects NAD’s plans to resolve advertising disputes more quickly and efficiently. The most significant aspect of Fast-Track SWIFT is its expeditious resolution process. Parties receive a NAD decision within 20 business days from the initiation of a challenge, i.e., the time that the advertiser receives the challenge.
Under the new rules, any person or entity may seek Fast-Track SWIFT review, but the Fast-Track SWIFT process is limited to issues in national advertising that do not require complex substantiation, such as clinical or technical testing or consumer perception evidence. Specifically, only the following three types of claims are eligible for fast-track review: the prominence or sufficiency of disclosures; misleading pricing and sales claims; and misleading express claims that do not require review of complex evidence or substantiation. NAD also provides hypothetical case examples it might find appropriate for fast-track determination.
To launch a Fast-Track SWIFT case, a challenger can submit a challenge via NAD’s online portal. Unlike standard track cases, the challenge letter must be no more than five pages and provide no more than five evidentiary exhibits. Within two business days of receiving the challenge, NAD will determine whether the case is appropriate for fast-track review. If NAD determines the case is appropriate for Fast-Track SWIFT, within four days of NAD’s determination the advertiser may object in writing to participating in the process, with reasons why the challenged claim is not appropriate for fast-track review or that the allegations are meritless, or it may state that it will not participate in the fast-track system.
If NAD determines that the challenge is still appropriate for fast-track review, the advertiser must submit its written response that provides substantiation or arguments concerning the challenged advertising, together with any supporting evidence. After the record is complete, NAD will determine, at its discretion, whether to hold meetings, which will be held via telephone or video conference. After that, NAD will issue its decision within 20 days of initiation of the challenge.
To be clear, the traditional NAD path remains open to challengers, and a case that is not appropriate for Fast-Track SWIFT may be suitable for NAD’s standard track process. Thus, if a matter is not accepted for the Fast-Track SWIFT process, a challenger may transfer the case to the standard track process or close the challenge.
Given that the program was launched last month, we can expect to begin to see cases decided under the new Fast-Track SWIFT process soon. Stay tuned.