In Two Fast-Track SWIFT Cases, National Advertising Division Recommends Advertiser Claims be Discontinued in One, Modification of Disclosures in Other
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New York, NY – June 28, 2022 – The National Advertising Division (NAD) of BBB National Programs closed two Fast-Track SWIFT cases in May 2022. In these cases:
- AT&T Services, Inc. challenged Charter Communications, Inc.’s (Spectrum) claim that AT&T’s internet service, without distinction between cable/copper or fiber services, provides unreliable and glitchy internet connectivity, to a consumer-noticeable degree for the activities depicted in the commercial.
- T-Mobile Puerto Rico, LLC challenged disclosures made by Liberty Mobile Puerto Rico Inc. in connection with certain wireless network performance claims.
Fast-Track SWIFT is an expedited NAD challenge process designed for single-issue advertising cases.
AT&T v. Spectrum
AT&T challenged a claim made by Spectrum in a television commercial titled “The Choice for Gamers Ad.” The commercial depicts, in writing, voiceovers, and visually, that Spectrum is the “winner” in providing internet service that is reliable and free from glitches as compared broadly to “telephone internet companies,” without elaboration, limitation, or qualification.
Spectrum objected to NAD’s consideration of AT&T’s challenge based on its contentions that the claim that AT&T challenged is not expressly stated in the commercial and the evidence of what quality of service AT&T offers across its footprint is complex. Charter also asserted that it permanently discontinued the challenged commercial before it learned of AT&T’s challenge and therefore declined to submit evidence in support of the challenged claim. NAD determined that it had jurisdiction over the challenge because Charter’s commercial continued to air through the date of the complaint and the challenge was appropriate for Fast Track SWIFT because it presented a single express claim that does not require review of complex evidence.
Because Spectrum provided no evidence to support its superior performance claim, NAD recommended that the advertiser discontinue the claim that AT&T’s internet service, without distinction between cable/copper or fiber services, provides unreliable and glitchy internet connectivity to a consumer-noticeable degree for the activities depicted in the commercial.
In its advertiser statement, Spectrum stated that it “is disappointed with NAD’s decision to accept this challenge for Fast-Track review” for several reasons but noted that it “remains a strong supporter of self-regulation and will take NAD’s recommendations into account in formulating its future advertising.”
T-Mobile Puerto Rico v. Liberty Mobile Puerto Rico
T-Mobile Puerto Rico challenged as insufficient the “material connection” disclosures made by Liberty Mobile Puerto Rico in connection with claims that Liberty’s wireless service has the “best network” and the “best coverage” based on testing from Global Wireless Solutions (GWS).
NAD noted that GWS conducted testing as a paid non-exclusive service to Liberty. Although there is nothing unusual about the relationship between GWS and Liberty, NAD determined that consumers should be made aware of that relationship through a clear and conspicuous disclosure as it may affect the credibility and weight consumers give to the claim if they are aware that Liberty paid GWS for the study. Therefore, NAD recommended that Liberty clearly and conspicuously disclose that Liberty paid GWS for the study which is the source of its wireless network performance claims.
NAD noted that during the challenge, Liberty voluntarily permanently discontinued its description of the GWS testing to support its network performance claims as an “independent study.” Liberty’s discontinuation of this claim will be treated by NAD for compliance purposes as if NAD recommended its discontinuance. In addition, Liberty began to use the language “Study conducted by GWS paid for by Liberty,” which is clear and easily understood, effectively describing the source of the claims.
NAD examined the challenged advertising in its various forms to assess the prominence and sufficiency of Liberty’s disclosures. Based on its review, NAD recommended that the disclosure be more prominently located, at or near the very start of the text so that consumers do not read past the essential language. NAD also recommended that Liberty use some mechanism to direct consumers’ attention to the disclosure and ensure that the font size of the disclosure is readable in all versions of the advertising.
NAD determined that the challenged advertising was appropriate for Fast-Track SWIFT because the challenge presented the single issue of whether the advertiser’s disclosures in connection with its wireless performance claims adequately disclose the connection between GWS and Liberty. NAD also determined that although the ads in question were in Spanish, they did not present any significant or unique linguistic concerns that would prevent NAD’s analysis as NAD has analyzed claims made in Spanish-language advertising on several other occasions.
In its advertiser statement, Liberty stated that it “agrees to comply with NAD’s recommendations” and that it “appreciates NAD’s guidance regarding the types of disclosures it shall make when making network performance claims based on testing completed by a third-party but paid for by the company.”
Advertisers are encouraged to learn more about the NAD Fast-Track SWIFT challenge process and how to file a challenge. All BBB National Programs case decision summaries can be found in the case decision library. For the full text of NAD, NARB, and CARU decisions, subscribe to the online archive.
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