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In a decision underscoring the complexity and risks of making environmental marketing claims, the National Advertising Division (NAD) issued a decision in a challenge brought by the International Bottled Water Association (IBWA) against Boxed Water is Better® (Boxed Water). In the case, the NAD addressed a slew of claims touching on recyclability, renewability, life cycle impact comparisons, puffery, and more.

Recyclability and the Green Guides

NAD substantiated Boxed Water’s claims that its cartons are “recyclable” and “100% recyclable,” finding that the claims were consistent with the Federal Trade Commission’s (FTC) Green Guides, which permit such statements if a substantial majority (defined as 60% or more) of consumers have access to appropriate recycling facilities. Despite the multilayered structure of the cartons and industry challenges separating materials, NAD determined that the key threshold was access—not actual practice.Continue Reading Recyclable, Renewable, Regulated: NAD Pokes Holes in Boxed Water’s Green Pitch

Venable’s Advertising and Marketing Group hosted its 11th Advertising Law Symposium at our offices in Washington, DC on March 20. The symposium brought together both business and legal professionals, including in-house counsel and marketing executives, to connect on trends, opportunities, and challenges in the industry. The sessions covered a breadth of interesting topics on the latest and greatest in advertising law.

If you couldn’t make it, here are some themes that ran through some of the day’s engaging conversations:Continue Reading Key Takeaways from Venable’s 11th Annual Advertising Law Symposium

Join us as we spotlight select chapters of Venable’s popular Advertising Law Tool Kit, which helps marketing teams navigate their organization’s legal risk. Click here to download the entire Tool Kit.

For more than 50 years, the National Advertising Division (NAD) of the Better Business Bureau’s National Programs has provided a self-regulatory system for resolving advertising disputes. It offers a cost-effective, voluntary alternative to litigation, allowing competitors to challenge advertising claims based on specific procedures.Continue Reading The National Advertising Division

The National Advertising Division (NAD) recently issued a series of decisions addressing influencer and third-party marketing. The NAD is a self-regulatory body that assesses the truth and accuracy of claims made in national advertising and refers matters to the Federal Trade Commission (FTC) if an advertiser refuses to comply with its decisions.

Influencer’s Lash Claims

NAD reviewed videos posted on social media featuring a teen influencer self-described as a brand ambassador for the cosmetic company NuOrganic. The influencer made express and implied claims about NuOrganic’s eyelash serum, including “naturally grown long lashes” and “safe for young eyes.” NuOrganic argued that it could not control statements made by the influencer, but that it does monitor posts for content that may violate its guidelines. However, NAD investigated and identified certain Instagram posts where NuOrganic and the influencer had tagged each other about the same product, making substantially similar claims. NAD concluded these posts lacked the disclosures needed to inform viewers about the material connection between the influencer and NuOrganic. NAD recommended that the company take immediate steps to discontinue the videos containing the unsupported claims.Continue Reading National Advertising Division Targets Celebrity, Influencer, and Third-Party Marketing in Recent Decisions

Episode 10 of Venable’s Ad Law Tool Kit Show, Season 2,is now available. Listen to “Understanding False Advertising Claims, Part 2: The National Advertising Division” here, or search for it in your favorite podcast player.

The National Advertising Division (NAD) is part of the BBB National Programs. Its mandate is to “hold national advertising…

At this week’s National Advertising Division Annual Conference, FTC Commissioner Melissa Holyoak and FTC Bureau of Consumer Protection Director Samuel Levine presented starkly different perspectives of the agency.

On Monday, Levine provided a familiar list of the FTC’s accomplishments over the past year, including what consumers can expect from the BCP going forward:Continue Reading At NAD Conference Federal Trade Commission’s Holyoak and Levine Share Contrasting Perspectives on the Agency’s Role

Earlier this month, the National Advertising Division of BBB National Programs (NAD) recommended that Amyris Clean Beauty, Inc.’s (Amyris) Biossance skincare products modify or discontinue several claims regarding their “clean” and “ethically and sustainably sourced” ingredients, including:

  • “Clean ingredients and clean formulas—we ban over 2000 ingredients that are known to be toxic to you and the environment. All of our ingredients are also ethically and sustainably sourced.”
  • “Our 100% sugarcane derived squalane is ethically and sustainably sourced, keeping 2 million sharks every year safe from liver harvesting.”
  • “Did you know our squalane is sugarcane derived and it’s a hero ingredient in *every* Biossance formula? This miracle multitasker locks in weightless moisture, calms and protects, and improves elasticity.”

Continue Reading NAD Issues Decision Addressing “Clean,” “Ethically and Sustainably Sourced,” and Efficacy Claims for Amyris Clean Beauty, Inc. Biossance Skincare Products

The National Advertising Division of BBB National Programs (NAD) recommended last month that Stihl Incorporated USA (Stihl), a manufacturer of equipment and tools, discontinue or modify its unqualified “Made in America” claims. Modified claims would need to make clear that “not all (or virtually all) of its products are made in the United States and that not all (or virtually all) of the parts of those products are from the United States,” according to the recommendations.

The Claims at Issue

NAD reviewed “Made in America” claims made on Stihl’s website, social media, commercials, and print ads. In addition to claiming “Made in America,” Stihl ran ads stating, “It’s just three words. But they tell you everything you need to know…Not everyone can say them. But we can. MADE IN AMERICA.”Continue Reading In “Made in America” Case NAD Finds That Advertisers Should Not Rely on Disclosures to Cure a False or Misleading Claim

On September 19, Sam Levine, the director of the Federal Trade Commission’s Bureau of Consumer Protection, outlined the agency’s priorities at the annual conference of the National Advertising Division. Here are the highlights:

Levine outlined three pillars of the enforcement agenda:

  • Focus on the practices that cause the most consumer harm
  • Obtain relief that not only halts the violative conduct but also changes incentives to engage in such conduct in the future
  • Use tools beyond case-by-case enforcement to change behavior (think rule making)

After also noting that the pace of enforcement at the FTC had increased, Levine then focused on some substantive areas of concern, starting with junk fees and dark patterns.Continue Reading FTC Consumer Protection Chief Sam Levine Outlines FTC Priorities at the NAD Conference

As the rest of us prepare for the Super Bowl by buying avocados to make guacamole, installing new big-screen TVs, and donning Ram/Bengal-themed face paint, select corners of corporate America are preparing for the biggest advertising day of the year.

In 2021, companies spent approximately $485 million on ad slots during the big game, and the average cost of a 30-second commercial slot was about $5.6 million. With such high stakes, plus the intensive “Standards and Practices” review employed by the TV networks, one would assume that anything that makes the cut is above reproach. (The review board won’t even let advertisers use “Super Bowl” because it’s trademarked, which is why you often hear “the Big Game” in ads.)

However, the following examples of legal challenges to your favorite Super Bowl commercials demonstrate that the world of advertising law can be tricky to navigate, and companies that advertise simply cannot mitigate their litigation risk to zero.Continue Reading Defending Against the Blitz: Examining the Legal Issues Surrounding Super Bowl Ads