NAD 2020: A Virtually Stellar Advertising Law Conference

COVID-19 has changed all our lives in ways big and small. Our NAD Annual Conference planning committee determined in early spring that an in-person event was not in the cards this year. Instead the National Advertising Division (NAD) welcomed more than 300 marketing and advertising law experts to a virtual event in early October that featured the same high-caliber keynote speakers and cutting-edge panels on advertising law that our attendees have come to expect from this conference in years past.

BBB National Programs CEO Eric D. Reicin kicked off the event with NAD vice president, Laura Brett, reflecting on 50 years of advertising self-regulation, the new initiatives that NAD launched this year, and a glimpse at what’s in store for the future. 

This welcome address also set the table for some of the key topics that would take center stage over the following three days: the impact of the coronavirus pandemic on the advertising industry, the prevalence of COVID-19 fraud, diversity and bias in advertising law, and the controversial role social media plays in advertising today.

For more from our CEO on his takeaways from the event, you can read his Reflections on NAD 2020 on LinkedIn. Here are a few more takeaways from the event that we on the NAD team found worthy of a call-out.

Diversity & Inclusion 

One of the most anticipated topics covered at the event was the panel that discussed an issue confronting society at-large, with real implications in advertising: racial inequality and injustice.

How should the advertising industry address these issues? What is the role of advertising law in addressing inclusivity (gender, sexual orientation, to name a few)? Moderated by Sarah Bruno, Partner, Reed Smith, the “Diversity, Inclusion, & the Elimination of Bias in Advertising Law” panel included a robust representation from the self-regulatory world, the broadcast networks, and advertisers. (See the full panel.)

The panel discussed how gender diversity and inclusion have been a top priority for companies across the globe for years, but yet still many women do not feel that advertising truly represents them. Our speakers stressed the important role that ad agencies and brands play to ensure broader representation and greater inclusivity in advertising. 

The panel outlined various ways that their companies are advertising to thoughtfully represent the diversity of the communities where they are shown, such as the use of diverse influencers, AT&T’s commercial that featured a gay couple with a disabled child, the selection of sponsors for events with diversity in mind, Aflac’s use of community members to vet ads, and corporate commitments to build teams within agencies and on marketing teams that are just as diverse as the ads that are being created. 

Social Media Regulation, COVID-19, and Policy Priorities at the FTC

Can speech on social media platforms be subject to self-regulation? Day 2 keynote Tom Rogers, Executive Chairman, Engine Media and Founder of CNBC answered that question in his Q&A with NAD’s Laura Brett, defining the challenge as the prevalence of false, misleading, defamatory, and inciteful speech in social media and the unwillingness of social media platforms like Facebook to effectively combat it. He proposes a public interest arbitration system for quick and independent review of such speech.  

The need for truthful and accurate content on social media has never been more important than during the coronavirus pandemic. We were honored to have Deputy Attorney General of the United States, Jeffrey A. Rosen, join us as our day 3 keynote to discuss the COVID-19 scams that have resulted in 74,000 calls and emails to law enforcement to investigate inaccurate and misleading claims for things like immunity pills, fake “cures” (e.g., bleach, ozone gas, colloidal silver), fake PPE, and fake COVID-19 testing.  

Rosen outlined the work of the DOJ to dismantle these criminal schemes, cooperating closely with the FTC and FDA, and referenced the efforts of advertising self-regulation – specifically NAD and the DSSRC – to join in this fight. 

Earlier in the conference, the panel “When NAD Comes Knocking” also addressed NAD’s monitoring efforts to target advertisers making false and misleading COVID-19 treatment claims. Moderator Annie Ugurlayan explained NAD’s monitoring case system (comprising 20% of NAD’s caseload) and that COVID-19 cases are a top priority for the team. 

Also referencing the work of NAD, day 1 keynote speaker, The Honorable Christine S. Wilson, noted that “in a world of finite resources, there is no doubt that force multipliers like NAD contribute significantly to the goal of protecting consumers.”  

In her keynote, Wilson focused her remarks on three key policy issues:

1. Deregulation. Though Wilson agrees with the FTC’s systematic review of its rules and regulations, she disagrees with rulemaking initiatives. 
2. Non-Monetary Settlements. Wilson identified the importance of non-monetary settlements to end bad conduct instead of relying on the costly and lengthy litigation to obtain monetary settlements.
3. Individual Liabilities for Corporate Executives. Wilson calls this not required, misguided “traditional (and appropriately limited) approach” one that vilifies successful businesspeople.

Another voice from the FTC was the amazing Lesley Fair, Senior Attorney at the Bureau of Consumer Protection, who delivered her perpetually highly anticipated year in review. Her presentation covered top-priority COVID-19 scams and other areas of concern for the FTC, such as Made in the USA claims, CBD claims, fake consumer reviews, Fair Credit Reporting Act violations, disclosures of material connections of endorsers with the advertiser, and debt collection.  

Hot Topics

We were fortunate this year to host panel discussions that explored a wide range of issues, from the term “natural,” to the importance of context, and the legal landscape of influencers, endorsements, and reviews. Here are some “hot topic” highlights:

• Fresh. Natural. Nothing Artificial Here! The panel discussed the importance of consumer understanding of terms such as “natural” which have no regulatory definition (e.g., surveys) and how that term (or terms that are defined “e.g., added sugars,” “fresh”) are used in advertising to determine the messages reasonably conveyed by the advertising. 
• Big Brands and Social Media: The panel focused on different organizations’ submissions in response to the FTC’s request for comments on the Testimonials and Endorsements Guides and how they compared or contrasted in terms of advocating for more rigorous enforcement and greater guidance on certain topics (e.g., virtual influencers) versus less regulation and no codification of the guides. 
• It's Not Easy Being Mean: The panel discussed denigrating claims that must be truthful, accurate, and narrowly drawn, and explored various NAD cases to assess whether the advertising was falsely disparaging. A key takeaway is that context is key – visuals (including facial expressions and demonstrations) matter and can either reinforce a truthful message or render your advertising falsely denigrating. 
• How Far Is Too Far? Using hypothetical products and fact patterns, the panel evaluated whether claims for products based on the evidence provided were supported. By engaging in-house, counsel, marketing and R&D, the audience gained real world insights into the conversations that should take place when a company wants to make certain claims for their products. 
• Oils & Vinegar, Fast & Fastidious – A Year in Review. The panel provided an overview of NAD’s newest programs and presented stats on the number of cases and key product areas for those cases this year (including cosmetics; drugs and dietary supplements; and telecom and entertainment), airing some of the commercials that best highlight those trends.

The conference concluded appropriately with the Best Practices at NAD, NARB, and the FTC where panelists discussed the “need-to-know” best practices and inner workings of these three cooperating arms of the U.S. system of advertising industry self-regulation to set attendees up for success in 2021. 

This year’s conference had something for everyone, addressing social and political issues of the day while also providing valuable guidance to practitioners on hot topics and claim substantiation.  In the words of Eric Reicin, “the advertising industry must do more than just sell products and services. We have an opportunity to connect with consumers and communicate what our brands stand for.” 

Join us next year for an even bigger and better (and hopefully in-person) 50th celebration of NAD and advertising self-regulation.