In contrast to a general emphasis on new data and new claims at the 2015 NAD conference, NAD staff attorneys, advertising lawyers, and survey experts took the time to weigh in about the emphasis NAD will continue to place on traditional best practices of consumer surveys for claim substantiation or challenge. Although online surveys programs allow survey experts to access pools of millions of respondents almost instantly, they also raise new issues regarding context and monitoring of responses. The panel made it clear that the ease and advantages of online surveys do not excuse survey experts from keeping in mind the same concerns that have undergirded survey evidence for the past fifty years.
In a presentation titled “Tiny Screens, Big Distractions: How Reliable is Your Online Consumer Perception Survey?”, David Bernstein of Debevoise & Plimpton, Kevin Goldberg of Nestlé Nutrition, Hal Poret of ORC International, and Annie Ugurlayan of NAD traced the history of survey evidence before the courts. In the 1960s, surveys were treated with extreme skepticism by judges, with the number used in Lanham Act litigation before 1975 stuck in the single digits. With the additional consideration given to expert testimony by the revised Federal Rules of Evidence in the 1970s, Bernstein explained, judges became more comfortable with surveys, eventually elevating them to the position of influence they hold today.