Earlier this month, NAD issued its first decision under its Fast-Track SWIFT program, its expedited review track for single well-defined advertising issues. (Here are more details on NAD’s Fast-Track SWIFT program.) In its first substantive Fast-Track SWIFT decision, NAD dealt with a dispute between energy bar manufacturers Kind and Clif and reviewed the claim “A Better Performing Bar–Clif Bar For Sustained Energy,” which appeared as the top AdWords result for internet keyword searches for “Kind Bars” and “energy bars.”

Kind argued that this constitutes an express claim comparing the performance of Clif Energy Bars (either generally or with respect to sustained energy) to the performance of Kind Bars or all energy bars on the market, that must be supported by head-to-head product testing. Clif argued that the claim was not appropriate for SWIFT treatment because the challenged claim was too complex. Specifically, Clif argued that expert testimony and a consumer perception survey were necessary to determine whether the word “better” conveyed a comparative performance message or was merely an expression of the advertiser’s opinion of its product, and that these questions could not be obtained within the shortened SWIFT timeline. NAD concluded that the claims were appropriate for SWIFT treatment because they did not require NAD to evaluate complicated product testing (the advertiser did not argue that it had product testing to support a comparative performance claim), and any legal arguments were limited because the challenge involved a single claim in a single context.


Continue Reading NAD Issues First Decision under Fast-Track SWIFT Program

Two recent decisions by the National Advertising Division (NAD) provide a helpful reminder to companies that material connections must be disclosed on their seemingly independent websites — so-called native advertisements. Notably, one of the cases arose from the NAD’s routine monitoring program, but both serve as a good reminder that without proper disclosures, consumers may

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.


Continue Reading NAD Launches Fast-Track SWIFT Process

A recent decision from the National Advertising Division (“NAD”) regarding claims made by SmileDirectClub, LLC (“SDC”) in online advertising for its Smile Direct Club Clear Aligners provides guidance on a variety of key advertising issues, including comparative and savings claims, guarantees and consumer reviews and testimonials. NAD recommended the modification or discontinuation of many of the claims challenged by Align Technology, Inc. (“Align”), maker of Invisalign clear aligners.

First, Align argued that SDC’s advertising misled consumers by claiming that its products and services provide smile correction for the same severity levels, or for a comparable range, as Invisalign. According to the challenger, claims such as “SmileDirectClub invisible aligners straighten most smiles in an average of 6 months” conveyed a message that SDC can fix most teeth issues, including complex conditions, without proper disclosure that SDC’s product is actually intended to treat milder and less complex cases of teeth malocclusion.

In recommending that the advertiser modify its claim by disclosing its limitation to mild-to-moderate malocclusion cases, NAD explained that “[a]dvertisers are free to make ‘apples-to-oranges’ comparisons in order to highlight features or attributes of their products, provided that the advertiser disclose the material differences between the products being compared.”


Continue Reading Something to Smile About: NAD Provides Guidance on Key Claim Substantiation Issues in Recent Decision

Recently the National Advertising Division (NAD), as part of its routine monitoring program, evaluated whether certain claims made by Petco Animal Supplies, Inc. (Petco) in marketing and advertising materials for its “no artificial ingredients” advertising campaign were adequately substantiated. The NAD determined that Petco presented sufficient evidence to demonstrate that it is “setting a bold new standard for nutrition” and that it “will continue to evaluate and evolve [its] standards and assortment to take pet nutrition to new levels.” However, it recommended that Petco modify certain claims that it was removing “all” artificial ingredients or that there would be “no more artificials” in any of the pet food or treats it carries. The case provides some important guidance on the rules for making claims regarding “no artificial ingredients.”

Petco launched an initiative to remove artificial ingredients from its dog and cat foods and marketed that initiative heavily. Petco had adopted definitions of “Artificial Flavor,” “Artificial Color,” and “Artificial Preservative” that mimicked the FDA’s definitions and language, and expressly disclosed to consumers its definitions of these terms. Specifically, Petco disclosed that its definition of “artificial ingredients” did not include “synthetic vitamins, minerals and amino acids,” “substances that are derivatives or mimics of national compounds,” and “substances that may fall into categories outside the Petco definition of artificial colors.”


Continue Reading Make No Bones About It: NAD Finds Petco Is “Setting a Bold New Standard for Nutrition” but Recommends “No Artificials” and “Better Nutrition” Claims Should Be Discontinued

Guarantees are a common marketing practice and can have two meanings—the marketers guarantees product performance or, perhaps related, the marketer promises the consumer her money back if not satisfied. A recent decision from the National Advertising Division (“NAD”) regarding claims Ava Science, Inc. (“Ava”) made in marketing its Ava Ovulation Bracelet (“the Bracelet”) provides some guidance on this marketing device. NAD reviewed Ava’s “one-year pregnancy guarantee” appearing in its social media marketing and website and determined whether, given the context, a consumer would believe this to be a performance or money back guarantee. NAD found that Ava’s website claims could be interpreted, by a potentially vulnerable audience, to overstate the Bracelet’s benefits.

NAD’s decision addressed the guarantee claims as made in two separate circumstances—Ava’s social media marketing and Ava’s website marketing. Of greatest concern to NAD was the guarantee claim on Ava’s website offering a “one-year guarantee of pregnancy*.” Though the guarantee contained a hyperlink disclosing its conditions, the hyperlink did not appear unless a consumer scrolled over the text. Relying on the FTC’s Dot Com Disclosures Guidance, NAD determined that the embedded hyperlink with specific conditions was not sufficiently “clear or conspicuous.” Further, NAD found the website’s “one-year guarantee of pregnancy” was too closely related “to the performance result—pregnancy—and not to the fact that the ‘guarantee’ is about the refund[.]” Ultimately, NAD recommended that Ava modify its website guarantee to make it obvious that terms exist in a separate hyperlink, and to clarify that it is a money-back, not pregnancy, guarantee.


Continue Reading Context is Key: NAD Examines Ava Fertility Bracelet Guarantee Claims

In formulating a health and safety-related claim, advertisers walk a fine line in accurately conveying the results of reliably conducted studies to support their claims. Disclaimers and other qualifying language are limited tools advertisers can use to mitigate the risk of a claims challenge. But as a recent NAD decision shows, just because a study is reliably conducted, does not necessarily mean it is a good fit to support an advertising claim. Thus, basing a claim on a reliably conducted study can still be held to be misleading if the study results do not closely reflect what the average consumer could realistically expect to achieve. What’s more, this recent decision reminds advertisers that a lengthy disclosure may not be sufficient when it fails to disclose a wide variability in observed study results.

On February 25, 2020, the National Advertising Division (NAD) issued a decision and recommendation that Trek Bikes discontinue use of the claim that its WaveCel helmet is “up to 48x more effective than traditional foam helmets in protecting your head from injuries caused by certain cycling accidents.” Although the cited “Bliven Study” demonstrated that the WaveCel helmet in fact outperformed traditional foam helmets for head injury protection in all impact scenarios, the NAD was concerned the claim conveyed the implied message that “People who use the WaveCel Helmet will have little to no risk of experiencing a concussion.”


Continue Reading Heads Up! NAD Recommends Discontinuing WaveCel Safety Claim

On December 19, 2019, the National Advertising Division (NAD) closed out the year with an announcement of its plans to “develop a fast-track process to more efficiently handle certain types of online and social media advertising claims.” These claims include insufficient disclosures, such as influencer posts that fail to disclose an influencer’s material connection with

The 2019 National Advertising Division (“NAD”) closed out its Annual Conference with an update from Laura Brett, the Director of the NAD, and Alexander Goldman, an attorney with the NAD. The update focused on three main points: NAD statistics from the past year, NAD practice pointers, and the future of the types of cases being brought at NAD.

Statistics

First, competitor challenges are trending toward a one third growth for 2019 as compared to 2018, while simultaneously decreasing the time to decision on challenges from 113 days on average to 100 days. Needless to say, the NAD is committed to promptly moving cases through the process. Ms. Brett made a point to bestow some well-deserved praise on her team for their hard work throughout the last year.

Major product categories subject to NAD challenges continue to be: appliances/consumer electronics/household products, drugs and dietary supplements, food and beverage, and telecom/entertainment. Whereas some categories are noticeably absent from NAD proceedings including automobiles, clothing and cosmetics, industrial products/office supplies, and travel/lodging. In addition, Mr. Goldman made the point that there remains a noticeable lack of service-based challenges at NAD despite services accounting for a large part of the U.S. economy.


Continue Reading An NAD Update

The National Advertising Division (“NAD”) held its Annual Conference in New York yesterday. Andrew Smith, the head of the Bureau of Consumer Protection for the FTC, delivered the keynote address and provided attendees with an excellent overview of the past year’s landmark decisions in FTC jurisprudence. For those who frequent this blog, it comes as no surprise that the hottest discussions focused on the recent trend among courts to question the FTC’s broad interpretation of its enforcement authority under Section 13(b), concentrating on rulings in the Shire ViroPharma decision from the Third Circuit, the LabMD decision from the Eleventh Circuit, and the recent Seventh Circuit decision in Credit Bureau Center.

In Shire ViroPharma, the Third Circuit ruled that, pursuant to the plain language of Section 13(b), to obtain an injunction under Section 13(b), the FTC must plead facts sufficient to show that a defendant “is” violating or “is about to” violate the law. Essentially, the Shire decision means that the FTC cannot use Section 13(b) to address wholly concluded past harm—a profound finding that could dramatically affect how the FTC pursues cases. For more analysis, see our past blogs on both the district court‘s and Third Circuit’s opinions. The FTC chose not to seek Supreme Court review of the Shire ViroPharma decision and instead appears to be trying to limit that case to its facts.


Continue Reading Mr. Smith Goes to New York: Takeaways from the Keynote Address of the FTC’s Director of the Bureau of Consumer Protection at the NAD Annual Conference