NAD Fast-Track SWIFT: Behind the Scenes of 2021’s Cases
Jan 26, 2022 by Eric Unis, Attorney, National Advertising Division, BBB National Programs
In 2021, almost 20% of all challenges brought to BBB National Programs’ National Advertising Division (NAD) were brought through NAD’s Fast-Track SWIFT process, an expedited way to challenge single truth-in-advertising issues. We wanted to take a moment to break down what we saw and provide some good takeaways.
The Fast-Track SWIFT challenges from this past year involved a wide variety of products and services, including telecommunications, personal care products, infant products, beauty products, and food and beverage products. The range of claims challenged included claims about ingredients, superiority, grocery pricing, disparagement, testimonials, five-star reviews, and disclosures. No matter the product, industry, or claim type, NAD decided all the cases within 20 business days, as promised. You can access summaries of all cases on our website.
When the challenge might not be right for Fast-Track SWIFT.
When a Fast-Track SWIFT challenge is filed, NAD first evaluates whether it is appropriate for the Fast-Track SWIFT process, an evaluation that often looks at whether the challenged claim(s) is express and involves a single issue. If NAD determines that a challenge presents an implied claim or is otherwise inappropriate for Fast-Track SWIFT, the challenger is notified and can transfer the case to NAD’s Standard Track. Several matters initially filed in Fast-Track SWIFT last year were transferred to the Standard Track. In such cases, the advertiser is not notified that the case was initially filed in Fast-Track SWIFT and the initial filing track of the case is not noted in the decision.
When the advertiser objects.
Advertisers can object to a case proceeding in Fast-Track SWIFT within four business days after the challenge has been opened, and then NAD must resolve the objection within two business days. In one challenge last year, an advertiser objected to the case being a Fast-Track SWIFT case and as a result, NAD transferred the challenge to the Standard Track. In making these jurisdictional decisions, NAD does not prejudge the merits of the challenge.
When the claims are discontinued before a decision.
In four Fast-Track SWIFT challenges last year, the advertiser voluntarily permanently discontinued the claims during the case. NAD treats permanently discontinued claims in Fast-Track SWIFT as it does in other challenges and returns jurisdiction for compliance purposes. There was one compliance inquiry associated with a Fast-Track SWIFT decision.
When a Fast-Track SWIFT challenge is appealed.
In late November, three Fast-Track SWIFT decisions were appealed to BBB National Programs’ National Advertising Review Board (NARB). Those cases were then reviewed by a panel of NARB panel pool members. Those 2021 panels issued their decisions “swiftly,” sending those results to the advertiser within just a few days of the appeal hearing. These appealed cases demonstrate to us that advertisers are just as engaged in Fast-Track SWIFT cases as they are Standard or Complex Track cases.
Types of challengers in Fast-Track SWIFT.
Participants in Fast-Track SWIFT varied from innovative startups to well-established industry leaders, and from parties who frequently appear before NAD to first-time participants and industries. One 2021 trend was trade associations participating in NAD cases, a trend that extended to Fast-Track SWIFT as well. One SWIFT challenge was brought by a trade association, which challenged testimonials from an olive oil company’s founder on a website, in social media, and in media appearances. NAD found that the testimonials conveyed unsupported messages about the quality of competing olive oils sold by members of the trade association challenger.
Types of challenges in Fast-Track SWIFT.
Many of our 2021 Fast-Track SWIFT challenges involved traditional issues but some raised issues of “first impression,” such as the use of emojis to make an express claim. For example, a challenge of social media advertising for BODYARMOR sports drink addressed influencer marketing and a disparagement claim. NAD found that the use of emojis in the context of an advertisement where NFL quarterback Baker Mayfield took a “taste test,” drinking BODYARMOR and Gatorade, constituted an express claim, as emojis frequently substitute for the written word in contemporary communications and some emojis more clearly communicate feelings or emotions than others.
While none of the challenges in 2021 addressed disclosures in influencer marketing or native advertising, two Fast-Track SWIFT challenges analyzed online consumer reviews in advertising. Competitors in the online customized haircare market each touted the number of five-star customer reviews for a product. NAD examined how the number of reviews was calculated and what consumers reasonably understood the claimed number of five-star reviews to represent.
NAD recently announced a new lane within the expedited Fast-Track SWIFT challenge submission process specifically to address the prominence and sufficiency of disclosures in national advertising. This fully online process is intended to encourage the use of Fast-Track SWIFT for influencer marketing, consumer reviews, and dark pattern issues that arise when material information is not disclosed, leading to consumer distrust in advertising. The new lane of Fast-Track SWIFT will use existing procedures but removes the requirement to submit a formal letter with the challenge and reduces the filing fee.
2021 showed that parties are using Fast-Track SWIFT to challenge the same wide range of advertising claims across many industries as in NAD’s other case tracks. These case decisions also provide sufficient detail so that the decision can serve as guidance. As NAD embarks on its 51st year, it continues to evolve to respond to the needs of consumers and national advertisers in a fast-changing advertising environment.