After Seven Months, the Verdict is in: Fast-Track SWIFT is Fast and Fair
Nov 19, 2020, 10:55 AM by BBB National Programs
The National Advertising Division (NAD) Fast-Track SWIFT (Single Well-defined Issue Fast Track) challenge process, which launched in April of this year was created in response to stakeholders who wanted a faster way to resolve single-issue cases. The process, which was developed in partnership with BBB National Programs stakeholders, is designed to be fast, but fair. Decisions are made public monthly, and to date every case has been resolved within the promised 20-business day timeline, with the average time to close at ten business days.
Ideal SWIFT cases are single well-defined advertising issues that rest on simple advertising principles and have uncomplicated evidence. In May, Laura Brett, Vice President of NAD, spoke with Loeb & Loeb’s David Mallen about the process and answered questions from the legal community about how the process was designed to work.
Though SWIFT accepts challenges to the prominence or sufficiency of disclosures (including influencer marketing, native advertising, and incentivized reviews) and misleading pricing and sales claims, all but one of the twelve closed SWIFT challenges so far, however, belong to the final SWIFT category, misleading express claims.
When the challenge is filed, NAD conducts an initial review and if the advertiser chooses to file an objection that the challenge is too complicated to be determined in the SWIFT process, the NAD team will conduct a second review. These gatekeeping features ensure that only appropriate cases remain in SWIFT. Three challenges have included such an objection, and two SWIFT cases have been transferred to Standard track.
In addition, initiating a SWIFT case may also encourage settlements between parties, as two cases have been closed within days of filing by consent of the parties.
While well-suited for digital advertising, SWIFT challenges run the gamut of advertising media and product categories. In the last six months we have seen SWIFT cases for telecom television commercials, infant formula labels, Google Ads search results for energy bars, the provenance of custom kitchen designs, disclosures for dietary supplements, security system claims, and online Wi-Fi coverage maps.
Another finding in these six months of working through SWIFT cases is the opportunity to raise important issues and provide useful, but carefully tailored, guidance to advertisers.
One challenge involved Google Ads returning the top result “A Better Performing Bar | Clif Bars for Sustained Energy” in response to a search for “Kind bars.” NAD determined that in this context it is expressly stated that Clif bars provided better (as in superior) “sustained energy” performance compared to Kind bars. NAD further determined that a comparison of the ingredients in each product was insufficient to support the superior performance claim. In recommending that the claim be discontinued, NAD limited its recommendation to the Google Ads search results.
Another SWIFT case focused on the claim “#1 Pediatrician Recommended Brands *Based on Combined Recommendations of Similac and EleCare,” which appeared in social media. Although the claim appeared on Similac cow’s milk infant formulas, the basis for the #1 claim for Similac included pediatric recommendations for Elecare, a small amino-acid formula brand for infants with protein allergies.
The survey evidence – the reliability of which was not contested – maintained that the #1 claim was based on recommendations in the “combined Infant Formula/Amino Acids category.” NAD determined that the claim was not a good fit for the advertiser’s evidence because the basis for the #1 claim was not understandable and recommended that it be discontinued.
As the Clif and Similac cases suggest, companies must weigh the desire for a speedy resolution versus a more expansive decision. Both SWIFT decisions thoroughly analyzed the challenged advertising quickly, the speed of which was certainly valuable to the parties. However, if they had proceeded in standard track, NAD would have likely provided guidance on whether Clif bar’s “sustained energy” claim was supported in other contexts, or whether combing data for traditional and amino-acid infant formulas was consumer relevant.
SWIFT is one of NAD’s three case choice options that provide companies with more flexibility and greater transparency into the advertising self-regulatory process. One of the benefits of NAD’s self-regulatory process has always been the quick time-to-resolution, when compared to litigation. SWIFT is raising that bar, and with the launch of Complex Track in August, we are further acknowledging that every case is unique and those voluntarily bringing cases to NAD and choosing self-regulation need choices.