NAD Advises Advertisers to Discontinue Claims at Issue, Not Just Individual Advertisements, if Seeking Administrative Closure

New York, NY – Oct. 23, 2013 – The National Advertising Division, in a challenge brought by AT&T Services, Inc., against advertising claims made by Comcast Communications, Inc., advised advertisers that it will retain jurisdiction over advertising claims at issue in a challenge unless advertisers agree to permanently discontinue the claims, not just the advertisement in which the claims appeared.

In this case, Comcast stated that it had discontinued the advertising challenged by AT&T prior to the commencement of NAD’s review.

Comcast argued that NAD should administratively close the case in accordance with NAD Policy and Procedure §2.2(B)(i)(d).

That section states:
“(i) If, at the commencement or during the course of an advertising review proceeding, NAD[] concludes that the advertising claims complained of are: . . . (d) permanently withdrawn from use prior to the date of the complaint and NAD[] receives the advertiser’s assurance, in writing, that the representation(s) at issue will not be used by the advertiser in any future advertising for the product or service … . Upon making such a determination, NAD[] shall advise the challenger that the complaint is not, or is no longer appropriate for formal investigation in this forum.”

As NAD noted in its decision, the advertiser permanently discontinued the challenged advertisement, but did not make the same assurances regarding the potential future use of the advertising claims made in the advertisement.

The distinction, NAD noted, is material. If NAD administratively closed cases where an advertiser discontinued the advertisement but did not assure in writing that the challenged claims would not be used in future advertising, the advertiser could simply reformat the same claims into new ads to avoid or delay NAD’s review.

In this case, NAD determined – solely given the absence of any supporting evidence in the record – that the advertiser’s discontinuance of the challenged commercial was necessary and appropriate.

NAD further recommended that the advertiser discontinue the specific unqualified claim, “AT&T is talking a lot about its so-called ‘Advanced Digital Network’ but when they upgrade you to U-Verse, you end up with the same old DSL speed,” and avoid using the claim that “Xfinity is four times faster” in a manner that is broader than the facts warrant.

NAD noted that nothing in its decision precludes the advertiser from making substantiated claims regarding the fact that some subscribers may receive the same speeds that they had with DSL before they switch to U-Verse.
Comcast, in its advertiser’s statement, said it “disagreed with NAD’s decision to retain jurisdiction … .”

“However, although Comcast does not believe NAD should have made any recommendations with respect to the discontinued commercial, it appreciates NAD’s affirmative confirmation that Comcast may continue to make substantiated claims regarding the fact that some AT&T subscribers may continue to receive the same DSL speeds they had prior to AT&T transitioning them to its U-verse network,” the company said.