National Advertising Division Creates Fast Track Program

Fox Rothschild LLP

Fox Rothschild LLP

In a break from issues relating to the coronavirus, the Better Business Bureau’s National Advertising Division (NAD) has recently instituted a quicker dispute resolution process, called Fast-Track SWIFT, with SWIFT standing for “Single Well-defined Issue Fast Track”.

As put by the NAD, Fast-Track SWIFT is an “expedited process for resolving simple, single-issue advertising disputes” that the NAD developed to address “industry concerns that the timeline for standard track cases can be too long to adequately address highly repeatable but simple issues.”  The NAD has stated the claims that are appropriate for a Fast-Track SWIFT challenge, at least for now, fall into three categories:

  1. The prominence or sufficiency of disclosures, including disclosure issues in influencer marketing, native advertising, and incentivized reviews
  2. Misleading pricing and sales claims
  3. Misleading express claims that do not require review of complex evidence or substantiation such as a review of clinical or technical testing or consumer perception evidence

For all matters that qualify for Fast-Track SWIFT, the NAD has indicated that its decision will be issued in around a month, far faster than the standard NAD process which takes around 4-6 months.  Additional information relating to the Fast-Track SWIFT process can be found in NAD’s FAQs on the topic here as well as in the rules of procedure that apply to NAD’s proceedings, which can be downloaded here.

The NAD is a non-governmental, voluntary self-regulatory body that considers challenges to advertising from competing advertisers and consumers and will issue recommendations to advertisers. If an advertiser does not engage in the NAD process or declines to follow NAD’s recommendation, the NAD will often refer the matter to the relevant government agencies, usually the Federal Trade Commission (FTC).  And as previously noted on this blog, NAD has stated that the majority of cases it refers to the FTC result in a FTC investigation, or the advertiser ultimately returning to NAD’s regulatory process.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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