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.

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Photo of Leonard L. Gordon Leonard L. Gordon

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in…

Len Gordon, chair of Venable’s Advertising and Marketing Group, is a skilled litigator who leverages his significant experience working for the Federal Trade Commission (FTC) to help protect his clients’ interests and guide their business activity. Len regularly represents companies and individuals in investigations and litigation with the FTC, state attorneys general, the Department of Justice (DOJ), and the Consumer Financial Protection Bureau (CFPB). Len also represents clients in business-to-business and class action litigation involving both consumer protection and antitrust issues. He also counsels clients on antitrust, advertising, and marketing compliance issues.

Photo of Shahin O. Rothermel Shahin O. Rothermel

Shahin Rothermel is an experienced counselor and defender who helps advertisers, retailers, merchants, and marketers advance their business goals while reducing legal and regulatory risks. Shahin provides clients with up-to-date, practical insights into the constantly evolving advertising, marketing, and e-commerce regulations, which allows…

Shahin Rothermel is an experienced counselor and defender who helps advertisers, retailers, merchants, and marketers advance their business goals while reducing legal and regulatory risks. Shahin provides clients with up-to-date, practical insights into the constantly evolving advertising, marketing, and e-commerce regulations, which allows her clients to make informed decisions. She has achieved successful resolutions, dismissals, and full walkaways in court, saving clients millions of dollars. She takes a pragmatic approach as a counselor, considering the implications of her advice for her clients’ marketing campaigns and their bottom lines.