NAD Fast-Track SWIFT Cases Resolved by Voluntary Discontinuation of Claims and One by Recommendation to Discontinue Claim in Google Ads
For Immediate Release
New York, NY – July 8, 2020 – The National Advertising Division (NAD) of BBB National Programs announced three new cases resolved in the month of June using its efficient Fast-Track SWIFT (Single Well-Defined Issue Fast Track) challenge process. Security service provider ADT challenged Frontpoint Security Solutions’ “no contract required” claim, kitchen designer Officine Gullo challenged fellow kitchen designer and manufacturer L’Atelier Paris Haute Design’s claim related to their length of time in business, and snack manufacturer Kind challenged Clif Bar with regard to its Google Ads claim “A Better Performing Bar | Clif Bar | For Sustained Energy.”
NAD Fast-Track SWIFT is an expedited process designed for single-issue digital advertising cases. The three cases resolved in June under the newly instituted process are:
ADT, LLC v. Frontpoint Security Solutions, LLC: In response to ADT’s SWIFT challenge against its “no contract required” claim for its DIY installation for home security systems, the advertiser agreed to permanently discontinue its claim.
Officine Gullo, Inc. v. L’Atelier Paris Haute Design, LLC: In response to Officine Gullo’s challenge, the advertiser agreed to permanently discontinue the claim that it has been designing and manufacturing kitchens for over a hundred years and/or since the 1830s. The advertiser further agreed to permanently modify claims referring to the provenance of its kitchen suites to phrases such as “French-inspired.”
Kind, LLC v. Clif Bar & Co.: Kind challenged Clif Bar’s claim that Clif Energy Bars are “a better performing bar . . . for sustained energy,” which appeared in the context of a top Google Ads result for an internet search for either “Kind Bars” or “energy bars.”
Clif Bar had objected to its claim being reviewed in the NAD Fast-Track SWIFT process, contending that its claim is too complex to be resolved in SWIFT because the express claim challenged and the messages reasonably conveyed would require expert testimony and possibly a consumer perception survey, all of which could not be obtained within the SWIFT timeline. NAD disagreed and noted that the complexity of any legal argument is limited to a discussion of the express claim challenged here – a single claim in a single context, made simpler by the fact that there is no imagery in Google Ads advertising.
Although Clif argued that the “better” claim is puffery and not tied to its sustained energy claim, NAD determined that when the claim is viewed as a whole “better” is followed immediately by the objectively measurable performance attribute “for sustained energy.” The challenger maintained that the advertiser could only support its claim with head-to-head comparative performance testing against Kind bars or the entire energy bar market, which the advertiser did not argue that it possessed. The advertiser submitted nutritional information regarding Clif and Kind Energy Bars, and an expert report from a dietician. NAD concluded that the evidence submitted by the advertiser was insufficient to support its unqualified claim that Clif Bars are better than Kind Bars or other energy bars at providing sustained energy. Therefore, NAD recommended that the advertiser discontinue the claim in the context in which it was challenged - a Google Ads result.
The advertiser stated that ”Clif Bar & Company understands NAD's points that the phrase ‘sustained energy’ could be interpreted by some consumers as not specifically limited to sustained energy needed for intense physical activity (for which, as NAD notes, Clif Bar did present substantiation), and that the particular context of these ads renders them comparative in nature. Clif Bar will modify the ads accordingly.”
NAD is now accepting three types of claims for consideration in the streamlined SWIFT process:
The prominence and sufficiency of disclosures in influencer marketing and native advertising;
Misleading pricing and sales claims; and
Misleading express claims that do not require review of complex evidence or substantiation.
To learn more about the NAD Fast-Track SWIFT challenge process and how to file a challenge, please visit BBBprograms.org/NAD-Fast-Track-SWIFT.
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About the National Advertising Division: The National Advertising Division (NAD), a division of BBB National Programs, provides independent self-regulation and dispute resolution services, guiding the truthfulness of advertising across the U.S. NAD reviews national advertising in all media and its decisions set consistent standards for advertising truth and accuracy, delivering meaningful protection to consumers and leveling the playing field for business.
About BBB National Programs: BBB National Programs is where businesses turn to enhance consumer trust and consumers are heard. This independent, non-profit organization enhances trust, innovation, and competition in the marketplace through the development and delivery of cost-effective, third-party self-regulation, dispute resolution, and accountability programs. BBB National Programs’ 10 leading industry self-regulation and dispute resolution programs resolve business issues of national and international importance, and fosters industry best practices in truth-in-advertising, child-directed marketing, data privacy, and dispute resolution. To learn more about industry self-regulation, visit bbbprograms.org.
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