National Advertising Division (NAD) West Coast Conference

From the latest developments at NAD, to best practices when testing to support advertising claims, to “Made in USA” claims, close to one hundred attendees at the Second Annual NAD West Coast Conference on March 5th at The Ritz-Carlton in Marina del Rey, Los Angeles were treated to a full day of informative and lively panels on current topics of interest in advertising law. Attendees heard experienced NAD practitioners from firms around the country and in-house counsel who shared practical advice on handling the day-to-day challenges of a competitive environment. NAD was honored to host Mary Engle, the Associate Director for Advertising Practices at the FTC, who appeared on two panels, sharing her perspectives on influencer marketing and affiliate marketing.

Below are some the highlights and key takeaways from the panels:

Guidance on Reliable Testing to Support Your Advertising Claims

This panel included Lauren Aronson, Crowell & Moring; Benjamin Sarbo, Kimberly-Clark Corporation; Ray Iveson, The Duracell Company and Martin Zwerling, NAD’s Deputy Director. The panel addressed the importance of designing tests that reflect consumer use and NAD’s treatment of industry standard tests reminding the audience that all testing, including industry standard testing, must be consumer relevant.

Key takeaway: Detailed and reliable data on actual product use should be done before testing products for claim support.

The Risks and Rewards of Made in USA Claims

This panel included David Walsh, Morrison & Foerster LLP; Nicole Miller, The Honest Company, and Eric Unis, NAD Staff Attorney. Panelists discussed the practical side of formulating qualified and unqualified “Made in USA claims, as well as the latest NAD cases covering “Made in USA” issues.

Key takeaway: When components of a product or product packaging are not made in the USA or are subject to some variation in their country of origin, a qualified “Made in USA” claim may be the best choice to avoid misleading consumers.   

Friendly Persuasion: Influencer Marketing Rules of the Road

This panel included Sarah Bruno, Arent Fox LLP, Jillian Cho, Benefit Cosmetics, Lindsey Mohle, Electronic Arts (EA) and Mary Engle from the Division of Advertising Practices, at the FTC. Ms. Engle and an experienced panel of in-house counsel from a diverse array of brands provided a step-by-step review of an influencer campaign and how to navigate the emerging legal issues that come with them.

Key takeaway: Negotiate and document the terms of influencer relationships to avoid legal pitfalls.

Introduction to the new Direct Selling Self-Regulatory Council

Attendees heard a presentation introducing the new Direct Selling Self-Regulatory Council (DSSRC), the latest addition to the ASRC, from DSSRC director Peter Marinello. DSSRC provides independent, impartial and comprehensive monitoring of direct selling companies on an industry-wide basis and addresses income representations (including lifestyle claims) and product claims by companies and salesforce members with an emphasis on claims disseminated on social media platforms. For more information visit http://www.asrcreviews.org/dssrc-2/about-us-dssrc/

Best Practices in Price and Sales Advertising

This panel included Jason Howell and Amanda Beane from Perkins Coie; J. Scott Evans, Adobe and Maureen Kats, PetSmart. The panel discussed the latest in price advertising litigation and NAD cases.  The panel also gave practical advice for businesses seeking effective and efficient processes for avoiding legal pitfalls.

Key takeaway: Internal guidance for making pricing claims may be done using carefully crafted online tools for sales teams. 

Insider Baseball: Marketing Advice from the Legal Department Plus Practice Tips for What Works – and What Doesn’t – at NAD

A candid discussion, led by Nancy Felsten from Davis Wright Tremaine LLP and included Ken Blackburn from The Procter & Gamble Company and NAD Director, Laura Brett, on what techniques are most helpful to parties in NAD proceedings and the legal and business strategies that go in to formulating challenges.

Key takeaway: Small competitors may be large competitors in the future so consider whether you want to allow a competitor to build market share using a false or misleading claim. 

Affiliate Marketing – What’s old is new again

This panel included Hannah Taylor, Frankfurt Kurnit Klein & Selz, and Mary Engle, from the FTC’s Division of Advertising Practices. Wrapping up the day, the panel on affiliate marketing discussed the FTC’s latest enforcement activity in this area. The panel also discussed NAD”s recent BuzzFeed and APEC decisions.

Key takeaway: Affiliate marketers promoting products for sale should disclose any material connections for selling the product and will be responsible for the truth of the messages reasonably conveyed in their advertising.