All About Advertising Law

Regulatory & Litigation Developments for Advertisers and Marketers

Category Archives: NAD

Demystifying the NAD Referral Process

By Randy Shaheen and Matthew S. Renick on October 4, 2018 Posted in FTC, NAD

What does it mean when the National Advertising Division refers a case to the Federal Trade Commission? At this year’s NAD Annual Conference, Mary K. Engle, the associate director of the FTC’s Division of Advertising Practices, and NAD director Laura Brett sorted fact from fiction about NAD referrals and shared their perspectives from both sides … Continue Reading

Recent NAD Decision Largely Rejects Puffery Defenses and Consumer Testimonials that Disparage Competition

By Randy Shaheen on July 26, 2018 Posted in Claim Substantiation, NAD

It seems like we (and the NAD) can’t get enough of “best.” In a recent case, the National Advertising Division (NAD) ruled that the advertiser, Mahindra USA, Inc., could not claim its products were superior without reasonable evidence. Deere & Company, Inc. challenged Mahindra’s tractor advertisements as unsubstantiated superiority claims. Mahindra’s ads included “Best” claims … Continue Reading

Simply the Best, Better Than all the Rest: Superiority Claims and Substantiation

By Randy Shaheen on July 24, 2018 Posted in Claim Substantiation, NAD

Do you have the best wireless provider? If so, best in what sense—the best contract, the best devices, the best connectivity, the best value? That was the issue NAD recently addressed when it recommended that T-Mobile discontinue its “Best Unlimited Network” claim. AT&T challenged T-Mobile’s tagline in a recent NAD case, arguing that it was … Continue Reading

NAD Okays Use of Non-Industry Standard Test

By Randy Shaheen on June 21, 2018 Posted in Claim Substantiation, NAD, Product Labeling

Many of you are no doubt familiar with ANSI testing, which is often touted as the gold standard in assessing product performance. However, other types of third-party tests exist, even if they have not risen to the level of being an “industry standard.” A recent NAD decision sheds some light on when and how advertisers … Continue Reading

“Everyone Does It” Doesn’t Fly at NAD

By Brian Tengel and Randy Shaheen on January 31, 2018 Posted in NAD, Pricing

When a widespread industry practice comes under regulatory scrutiny, companies that end up in the crosshairs sometimes fall back on the “everyone does it” defense. This argument has an intuitive appeal in the consumer-protection context—consumers are presumably aware of practices that are common across an entire industry, the thinking goes, and they make purchasing decisions … Continue Reading

Here Come the States—An Insider’s Look into the D.C. AG’s Office

By Christopher S. Crook on October 12, 2017 Posted in NAD, State Attorney General

A notable Venable alum stopped by the NAD conference last Tuesday morning to give the room an insider’s view into the Office of Attorney General in the District of Columbia. After a moving moment of silence for the victims of hurricanes, the recent mass shooting in Las Vegas, and his mother who had recently had … Continue Reading

NAD Annual Conference 2017 – FTC Priorities Keynote Address

By Brian Tengel and Amy Mudge on October 11, 2017 Posted in FTC, NAD

As we previously blogged, the National Advertising Division held its 2017 Annual Conference in New York City last week. Kicking off the event was Mary Engle, the FTC’s Associate Director of Advertising Practices, who gave the keynote address on behalf of Tom Pahl, the FTC’s Acting Director of the Bureau of Consumer Protection. Tom has … Continue Reading

New Director Discusses Her Plans For “Making NAD Even Better”

By Amy Mudge and Randy Shaheen on October 10, 2017 Posted in NAD

The Venable team had a great start to our week last week attending the NAD Annual Conference in New York City. For those who were not able to attend, we will fill you in on some of the highlights with this week’s blog posts. The conference started with a bang with its move to new … Continue Reading

Follow NAD’s Recipe to Support a Taste Preference Claim

By Amy Mudge and Randy Shaheen on September 20, 2017 Posted in Claim Substantiation, Food and Drink, NAD

We love to eat! Maybe this is why we blog about taste claims and substantiation a lot! See here and here. And since at least one of us is always on a diet, when we indulge we like to pick the best tasting options. A competitive taste superiority message is incredibly powerful, and as such … Continue Reading

NAD Lashes Out Over Use of Stale Market Share Data for a Best-Selling Claim

By Amy Mudge on September 18, 2017 Posted in Claim Substantiation, Cosmetics, NAD

I love a good mascara case. And it’s been too long. The last time NAD looked at mascara, it was monitoring challenges over whether celebrities in mascara ads were merely spokesmodels or product demonstrations and concluded the latter. (See here and here and an earlier blog I wrote on this topic.) NAD recommended clear disclosure … Continue Reading

Hey Kids, CARU Has a New Director. She’s Awesome!

By Amy Mudge and Randy Shaheen on September 8, 2017 Posted in Children/Kids, NAD

For some time now the Children’s Advertising Review Unit (CARU) has been guided by the able hands of Acting Director Phyllis Spaeth. The Council of Better Business Bureaus (BBB) which oversees both CARU and NAD just announced the conclusion of their search for a new permanent director — Dona Fraser. Phyllis returns to her previous … Continue Reading

NAD Finds Support for Cleaning Products Claims Not All Sunshine and Daisies

By Brian Tengel and Amy Mudge on August 31, 2017 Posted in Competitor Litigation, False Advertising, NAD

Whoopsy daisy. Better Life, a maker of home cleaning products, recently ran evocative comparative video ads with a product demonstration to grab consumers’ attention and gain share. It’s a common enough advertising strategy, but one that Better Life in this case should have nipped in the bud, according to NAD. The ads featured a time-lapse … Continue Reading

Live from New York It’s the NAD Advertising Law Conference!

By Randy Shaheen and Amy Mudge on October 7, 2016 Posted in FTC, NAD

With the end of summer and the start of school also comes the fall advertising law conference season, starting with the annual NAD conference. We wanted to share some highlights of the two-day event from last week. FTC Bureau Director Jessica Rich gave the keynote. While the FTC will not discuss pending cases, when discussing … Continue Reading

“UP TO” NO GOOD

By Randy Shaheen, Amy Mudge and Jack Ferry on June 28, 2016 Posted in FTC, NAD

A recent NAD decision provided an opportunity for NAD to once again opine on the standard for performance-related “up to” claims – this time related to energy efficiency. As even infrequent readers of the blog are aware, this is a popular topic and one we’re prepared to talk about more often than Disney releases a … Continue Reading

Coffee Talk with Lee Peeler: Self-Regulatory Process and Key Changes to NAD’s Procedures

By Randy Shaheen and Amy Mudge on May 11, 2016 Posted in CoffeeTalk, NAD

Lee Peeler has had a remarkable career. Currently he is President of the Advertising Self-Regulatory Council, which among other things oversees the NAD and CARU. Prior to that he was Deputy Director of the FTC’s Consumer Protection Bureau and an Associate Director of its Advertising Practices Division. And to top it all off, anyone who … Continue Reading

Soup Competitors Stir the Pot on Local Sourcing Claims at NAD

By Amy Mudge and Randy Shaheen on May 10, 2016 Posted in Food and Drink, NAD

With the popularity of the eating local movement, it’s no wonder food companies want to promote when they do business with local farmers or have small batch local operations. NAD recently provided some guardrails for such claims in a case involving General Mills. Its Progresso Soups tout “Vineland, New Jersey: Home of Progresso” and “This … Continue Reading

Women’s History Month – A Look at Women in Advertising

By Amy Mudge on March 29, 2016 Posted in FTC, NAD, Product Labeling, Retail

While we love our male colleagues, I am delighted that the women partners and associates in our adlaw group easily outnumber them. It seemed appropriate to close out Women’s History Month by taking a look at issues involving women in advertising (for the FTC’s take on Women’s History Month click here). Gender equality was clearly … Continue Reading

CoffeeTalk on Native Advertising with FTC Commissioner Brill

By Amy Mudge and Randy Shaheen on March 23, 2016 Posted in CoffeeTalk, Food and Drink, FTC, Green claims, NAD

We like drinking coffee; thoughtful conversations with friends and watching videos so we thought why not do all three. Below is the first of periodic vlogs that we hope to bring to you – FTC Commissioner Brill sharing some good coffee, good company and some thoughts on Native Advertising and whose shoes she tries to walk in when parties … Continue Reading

Not Your Mother’s Red Solo Cup

By Randy Shaheen and Amy Mudge on February 16, 2016 Posted in Green claims, NAD

We have sometimes described finding materials that will quickly biodegrade in landfills as the Holy Grail of environmental marketing. But who would have guessed it would come in the form of a polystyrene cup? Well, not exactly, the NAD cautioned in a recent decision. New Win Cup Holdings marketed the Vio cup, which it claimed … Continue Reading

The FTC Awakens: Native Advertising Enforcement Statement Out Just in Time for the Holidays

By Amy Mudge and Randy Shaheen on December 22, 2015 Posted in FTC, NAD, Native

It’s been a big week for premieres. And if you thought you sensed a disturbance in the Force then the Force is indeed strong with you as the FTC just released their Enforcement Policy Statement on Deceptively Formatted Advertisements and Business Guidance on Native Advertising. A long time ago, in a conference room far, far … Continue Reading

NAD Ups the Ante on “Up To” Claims

By Amy Mudge and Randy Shaheen on December 21, 2015 Posted in Claim Substantiation, Competitor Litigation, Disclosures, NAD

A couple of years ago it felt like we were blogging about developments in cases involving “up to” claims up to 3x more often than just about any other topic. To summarize the upheaval, for many years there were cases allowing an up to claim if an “appreciable number” of consumers could enjoy the claimed … Continue Reading

Last Minute Gift Ideas – CARU Reminds Us to Pretty Up Disclosures

By Amy Mudge and Randy Shaheen on December 18, 2015 Posted in FTC, NAD

In the last minute shopping frenzy, it’s a good time for retailers and manufacturers to make sure shoppers are told what they need to purchase separately to make a product go. Recently CARU recommended that Conair add an audio disclosure to its Quick Twist braiding tool that batteries needed to be purchased separately. The ad … Continue Reading

NAD Sure Don’t Like Those Christmas Cookies Babe

By Amy Mudge and Randy Shaheen on December 17, 2015 Posted in Food and Drink, FTC, NAD, Non-US, Product Labeling

Well not exactly. They do not care for Indonesia Butter-Flavored Cookies labeled as Danish Butter Cookies. But it gave us an opportunity to share one of our favorite country Christmas songs from George Straight with our dear readers: We blogged about this case when it came out this summer. The NAD recommended the company discontinue … Continue Reading

Under the Influence

By Randy Shaheen, Molly Cusson and Shahin O. Rothermel on October 30, 2015 Posted in FTC, Internet/Social Media, NAD

As Uncle Ben once said, “With great power comes great responsibility.” But Peter Parker had to learn the hard way, and marketers and social influencers sometimes need to as well. Well-known influencers can come from anywhere – some have big screen starts, others are video game superstars, and still others are makeup geeks. Some even … Continue Reading