Regulatory and Litigation Developments for Advertisers and Marketers
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:
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.
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:
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
In a recent series of webinars, members of Venable’s advertising law practice, Reed Freeman, Len Gordon, and Shahin Rothermel, along with some leading industry figures, explored and addressed key issues of concern to companies in the advertising space.
Our attorneys along with Panelists Mary Engle and Laura Brett from BBB National Programs, which administers the National Advertising Division (NAD), the investigative unit of the industry’s system of self-regulation; Lou Mastria from the Digital Advertising Alliance (DAA); and Daniel Kaufman from the Federal Trade Commission (FTC) also answered some audience questions. Below are some highlights from each session.
Q: To what extent does the NAD support the work of the FTC in enforcing self-regulation?
A: There has always been a strong relationship between the FTC and the NAD in supporting self-regulation. The FTC has limited resources, and it considers the NAD to be another cop on the street. There are always going to be cases that the FTC will want to pursue, regardless—for example, when it’s important to get money back to consumers. But anytime the NAD can define advertising as misleading and cause an advertiser to modify or discontinue the advertising, it frees up resources for the FTC. To show its support, the FTC prioritizes referrals from the NAD (as opposed to letters from competitors sent directly to the FTC). Similarly, after cases are referred to the FTC, it encourages the advertiser to participate in the NAD process and comply with the NAD’s decisions. So broadly speaking, the FTC really believes in the NAD’s role in encouraging self-regulation and in promoting truthful and non-misleading advertising.Continue Reading You Asked. We Answered.
We’re sorry not to be meeting up with you in person, but we hope you can join us for our spring 2021 edition of “Not a Symposium, but a Virtual Ad Law CLE Bonanza.” Combining the experience and thought leadership of one of the nation’s largest advertising law practices with key figures in advertising regulation, these three CLE-packed sessions are designed to educate and innovate. Topics will cover broad trends and anticipated developments, as well as industry-specific hurdles, highlights, and more.
Register today for any or all sessions!Continue Reading Spring 2021 Edition: Not a Symposium, but a Virtual Ad Law CLE Bonanza
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…
