NAD Complex Track Hypothetical Case Examples
The National Advertising Division (NAD) Complex Track is an enhanced process for challenges that require complex claim substantiation. The goal in developing Complex Track is to foster confidence that the case review was fair and thorough, and increase the predictability for the timing of case decisions in all tracks and reduce conflict between the parties.
Cases that may be considered for Complex Track may involve: multiple expert reports explaining and/or rebutting the evidence submitted; consumer perception surveys or other studies or surveys that can require additional time to complete; or similar claims made on a variety of different products.
Below are (non-exhaustive) examples of cases that may be appropriate for Complex Track.
Example 1: A challenger challenges “pet safe” claims for a line of multiple cleaning products. Each product’s ingredients and formulations are distinct. The advertiser has an internal multi-step protocol to assess safety to pets and the environment, involving an analysis of the ingredients, multiple forms of product testing, and input from and review by third-party toxicologists. Given the variety of products, claims, and third-party reviews, this challenge would likely benefit from the Complex Track process.
Example 2: An advertiser makes a line of over twenty types of scented candles claiming a variety of benefits such as improved mood, sleep, stress relief, based on the herbal preparation of each candle (lavender, lemon, rosemary, etc.). The challenged claims appear in multiple, different advertisements, featuring different candles either separately or grouped together. In addition to having to determine the messages reasonably conveyed in the many contexts in which they appear, NAD would also have to review a substantial number of ingredient studies. The challenge would likely benefit from being resolved in Complex Track because of the volume of advertisements, claims, products, and ingredients.
Example 3: A challenger challenges health and wellness claims core to the advertiser’s brand that was based on a large body of conflicting human clinical trial evidence. The body of evidence is likely to form the basis for efficacy claims for years to come. The challenger and advertiser anticipate engaging a variety of experts to rebut the other parties’ arguments on a variety of clinical testing concerns. Given the breadth of the clinical testing, and the importance of the claims to the brand, the challenge would likely benefit from the Complex Track process.
Example 4: In support of its health-related claims for a vitamin, there is voluminous evidence in PubMed, including in vitro, animal, and some human clinical studies on the main ingredient in the product. Even though the record is large, it would not benefit to have this case proceed in Complex Track. The analysis of the ingredient testing is straight forward (e.g., matching the formulation, dosage, route of administration between the product and underlying studies) and can be resolved in the Standard Track timeline.
Example 5. Advertising claims to reduce the appearance of blemishes based upon testing that is new-to-market, state-of-the-art imaging technology used to detect blemishes. The imaging technology is a dramatic departure from the current industry standard, had not been previously available before the challenged claims were made, and the reliability of such testing for claim substantiation had not previously been examined. Both parties would need an extended opportunity to engage experts to examine the reliability of the new technology. Given the new and significant technological advancement, the challenge would likely benefit from proceeding in the Complex Track to give experts more time to review the testing and the parties more opportunities to meet with NAD regarding their respective positions.
Example 6: In a case involving comparative claims for televisions, the parties have fundamentally different approaches on how to measure "brightness" and "color", the metrics that the challenged advertising was based upon. Submissions from both parties would involve both support for their own methodologies, and critiques of the opposing party’s testing, including expert reports. This challenge would likely benefit from the Complex Track process which would provide more time, longer page limits, and more interaction with NAD.
Example 7: A mulching product has a label with multiple express performance claims. The challenger files a challenge which includes performance testing on competing products and a consumer perception survey that determined that the label conveys an implied message requiring support. This challenge would likely benefit from an extended Complex Track schedule based on the need for responsive evidence on both express and implied claims, including consumer perception evidence.