National Advertising Review Board (NARB) Process
Who can file an appeal?
An advertiser has an automatic right of appeal pursuant to Section 3.1(A) of the NAD/NARB Procedures. The advertiser indicates its intention to appeal all or part of NAD’s decision in its Advertiser’s Statement pursuant to Section 2.9(B) of the NAD/NARB Procedures.
A challenger must request permission to appeal by submitting a letter to the NARB Chair not to exceed 20 double-spaced pages plus any relevant attachments from the NAD/CARU case record, explaining why there is a substantial likelihood that the NARB would reach a different conclusion than NAD. The letter must be accompanied by a non-refundable review fee of $5,000 (paid either by wire or by check to BBB National Programs), which fee will be credited toward the filing fee required by Section 3.1(C) if the review is granted. The letter should be addressed to the Chair, National Advertising Review Board (NARB), 112 Madison Ave., 3rd Floor, New York, NY 10016. The challenger must send a copy of this letter to the advertiser and to NAD/CARU. Within ten business days after receipt of the copy of the request for review, the advertiser may and NAD/CARU shall submit a response to the NARB Chair, not to exceed 20 double-spaced pages plus any relevant attachments from the NAD/CARU case record.
Cross-appeals to NARB are also permitted. Pursuant to Section 3.1(D), a challenger can appeal any claims/issues not appealed by the advertiser by submitting a letter to the NARB Chair within 5 business days of receipt of the final case decision with the advertiser’s statement identifying the claims/issues it wishes to appeal. In the case of a challenger appeal, the advertiser can appeal additional claims/issues by submitting a letter to the NARB Chair within 5 business days of receipt of the NARB Chair’s decision to grant the challenger appeal.
What are the fees?
The fee to appeal or cross-appeal an NAD decision to the NARB is $25,000. In the case the NARB Chair grants a challenger’s request for an appeal, the challenger submits an additional $20,000 given that its request for an appeal is accompanied by a non-refundable review fee of $5,000. The BBB NP can waive or reduce the fee for any appellant or cross-appellant who can demonstrate economic hardship.
When does the appeals process start?
The appeals process begins upon the submission of the advertiser’s statement. The NAD attorney submits the case record to the NARB within 5 business days of the receipt of the advertiser’s statement. A digital link of the record is sent to the parties.
What is the process?
i. Briefing schedule
The briefing schedule begins upon receipt of the digitized case record. The advertiser submits its brief not to exceed 30 double-spaced pages to the NARB Chair within 10 business days of the receipt of the case record. The challenger submits its brief (not to exceed 30 double-spaced pages) to the NARB Chair upon 10 business days of receipt of the advertiser’s brief. Extension requests must be submitted to the NARB Chair who has the right to accept, reject or modify such request. The parties can make new arguments but cannot cite to evidence outside of the case record.
In the event of a cross-appeal, after receipt of the case record each party will submit a letter to the NARB Chair, opposing party and NAD not to exceed 15 double-spaced pages explaining its position with respect to the appeal. Thereafter each party will submit a response not to exceed 15 double-spaced pages to the NARB Chair, opposing party and NAD. No other submissions are allowed.
The briefing schedule can be changed if either party to the appeal objects to facts or evidence included in the brief that are outside of the case record pursuant to Section 3.2(a). The NARB will return the brief to the party requesting that any information outside of the record be redacted and that the brief be resubmitted within 3 business days or default on its appeal.
ii. Securing panel members
The NARB Coordinator secures panel members once the briefing schedule is set. Each appeal consists of 5 panel members: 1 public member (typically a university professor), 1 advertising agency member, and 3 advertiser members. Upon receipt of the list of panel members, a challenger or advertiser may object for cause to the inclusion of a panel member. The objection must be submitted in writing to the NARB Chair who will determine whether to replace the panel member. Panel members must disqualify themselves if they believe they cannot reach an unbiased decision based on their past or present affiliation with the parties. NARB panel members will be considered as not qualified to sit on a panel if they are employed by, or have a client who competes against, one or both of the parties to the appeal.
The hearing will take place at the BBB NP office (112 Madison Avenue, 3rd Fl., New York, NY). After an introduction by the Panel Chair, the parties deliver their oral arguments (the time allotted for oral arguments is set prior to the hearing date). Panel members will ask any questions they have to both parties after they make their respective arguments. While NAD is not a party to the appeal, NAD attends each hearing. A Panel Advisor (usually the NARB Chair) and the NARB Coordinator also attend each appeal. After the oral arguments have concluded, the panel deliberates to reach a determination.
iv. Closing a NARB case
The NARB issues a decision within 15 business days after the hearing. The advertiser and NAD receive the decision first. The advertiser must submit an advertiser’s statement within 5 business days of receiving the Panel Decision pursuant to Section 3.7(A). Failure to submit an advertiser’s statement or failure to agree to the modifications requested by the NARB will result in a referral of the matter to the appropriate government agency pursuant to Section 3.7(B). Upon receipt of the advertiser’s statement, the decision with the advertiser’s statement is sent to the challenger and NAD. A press release, a draft of which will be reviewed by both parties prior to release, will be issued after both parties and NAD are in receipt of the final decision.