National Advertising Division Fast-Track SWIFT

BBB National Programs National Advertising Division Fast-Track SWIFT Case Examples

 

Claims that involve a single, well-defined advertising issue without the need for review of complex evidence or complex legal argument will be accepted by the BBB National Programs National Advertising Division (NAD) for Fast-Track SWIFT determination. Claims appropriate for consideration in an NAD Fast-Track SWIFT challenge include influencer disclosures, native advertising disclosures, misleading pricing and sales claims, and other express claims that do not require complex claim substantiation. Below are examples illustrating the types of cases NAD might find appropriate for Fast-Track SWIFT determination: 

 

Influencer & Incentivized Reviews Disclosures Case Examples

Example 1: An Instagram influencer posts a picture of herself drinking SuperHottie Tea, with the caption “SuperHottie has made me a SuperHottie!”  Reasonable Tea, LLC, files an NAD Fast-Track SWIFT challenge against SuperHottie Tea, Inc., maintaining that the influencer has a material connection to the advertiser, and therefore the influencer should include #ad in all SuperHottie posts.  NAD determines that this challenge can be resolved in Fast-Track SWIFT because it involves influencer disclosures that do not require review of complex evidence or legal argument—specifically, review is limited to what, if any, connection there is between the influencer and the advertiser, whether consumers would have expected that connection, and prior legal guidance on that issue. 

Example 2: Clout Sneakers partners with several popular influencers on a social media platform to raise the visibility of its hashtag challenge #swaggersneaker.  Competitor Style Sneakers files an NAD Fast-Track SWIFT challenge, maintaining that Clout Sneakers’ influencers failed to adequately disclose that their posts were sponsored by the brand.  The advertiser argues that the posts all included “#CloutSneakersPartner” on the third line. NAD determines that this challenge can be resolved in Fast-Track SWIFT because it involves the adequacy of influencer disclosures under prior legal guidance, not complex evidence or legal argument.

Example 3:  A beauty influencer posts that Glowing Moisturizer “turns back time 5 years.”  Hydration, LLC, maker of a competing moisturizer, files an NAD Fast-Track SWIFT challenge regarding the express claim “turns back time 5 years.”  NAD determines that this challenge cannot be resolved in the Fast-Track SWIFT process because the anti-aging efficacy of a moisturizer would likely involve reviewing complex substantiation including, potentially, clinical trial evidence.

Example 4: Every delivered box of Widget Wonders contains a pamphlet offering a $5 coupon for even more Widget Wonders in exchange for reviews on various social media platforms.  The challenger, Wonderful Widgets, files an NAD Fast-Track SWIFT complaint alleging that the advertiser should either discontinue the incentive or direct consumers that they should disclose the incentive in their reviews.  NAD determines that this issue can be resolved in Fast-Track SWIFT because it did not require reviewing complex evidence or legal argument but rather requires evaluating whether there is a material connection between the reviewer/advertiser that must be clearly and conspicuously disclosed and prior legal guidance on those issues.

 

Native Advertising Disclosures Case Examples

Example 5: Jump High Again, LLC, sponsors an article about its knee replacement technology in an e-mail newsletter entitled “Ask the Expert,” published by a consumer interest group, the Senior Citizen Brigade.  Alongside the “Ask the Expert” article is a financial advice column written by a Senior Citizen Brigade financial reporter.  Springy Step, Inc. files an NAD Fast-Track SWIFT challenge maintaining that the “Ask the Expert” article should include an “ADVERTISEMENT” banner at the top of the page or otherwise make clear that the article is advertising.  NAD determines that this challenge can be resolved in the Fast-Track SWIFT process because it involves native advertising and does not require review of complex evidence or legal argument—specifically, NAD review would evaluate whether the content is paid-for advertising by Jump High Again, relying in part on prior legal guidance on similar issues. 

Example 6: Projecting the Future, LLC, maintains a blog, separate from its official company website, featuring posts from various authors about its cameras.  Picture the Now Co. files an NAD Fast-Track SWIFT challenge maintaining that, while the blog contains a disclosure stating that it is owned by the advertiser, the disclosure is not easy to find, see, or understand. NAD determines that this challenge can be resolved in the Fast-Track SWIFT process because it involves native advertising and would not require reviewing complex evidence or legal argument, but rather only reviewing the size, placement, and readability of the disclosure and prior legal guidance on clear and conspicuous disclosures.

Example 7:  A popular magazine has several celebrity photos on its cover, but also a small photo of a “regular” woman and the quote “I lost 20 lbs with Chew & Lose Snacks! (see page 62)”.  On page 62, the article is clearly disclosed as sponsored by Chew & Lose Snacks.  HealthSpan LLC files an NAD Fast-Track SWIFT challenge maintaining that the cover photo should also include a disclosure because a reasonable consumer could take away the message that the cover photo represented a news article, rather than an advertisement.  NAD determines that the challenge can be resolved in the Fast-Track SWIFT process because it involves native advertising and would not involve a review of complex evidence or argument.  Any review of the weight-loss efficacy of Chew & Lose, however, would have to be filed as a standard track case.

 

Pricing & Sales Case Examples

Example 8:  Sleepy Company advertises a “LIMITED TIME OFFER: $300 QUEEN MATTRESS (that’s $150 off the regular price)” on its website and several social media platforms.  NapTime Company files a Fast-Track SWIFT challenge alleging that this offer is an ongoing sale and that Sleepy Company has never offered the mattress at the higher price point.  NAD determines that this challenge can be resolved in the Fast-Track SWIFT process because it is a pricing claim that will not require reviewing complex evidence or arguments, and the legal guidance on the pricing issue is well-settled.  The evidence required for the advertiser to substantiate its claim is straightforward: proof that it had previously advertised the mattress at the higher $450 sale price.

Example 9: Credibility World promotes its offer “Credit Report Check for $1” in print and digital media, including mobile phone advertising.  Monitor Yourself, LLC, files an NAD Fast-Track SWIFT challenge arguing that the credit report cost more than $1.  In order to get the $1 credit report, consumers also have to purchase a $20/month subscription to Credibility World’s credit-based monitoring system.  NAD determines that the challenge can be resolved in the Fast-Track SWIFT process because it is a pricing claim that does not involve reviewing complex evidence or legal argument but rather reviewing whether material terms of the offer were clear, conspicuous, and in close proximity to the offer and prior legal guidance on those issues. 

Example 10: 1000 Suns, Inc., tweets a “Buy One, Get One” offer for its flashlights, with an accompanying video.  The voiceover in the video states that the free second 1000 Suns flashlight is available for a separate “fee.”  Betelgeuse LLP, a competitor flashlight company, files an NAD Fast-Track SWIFT challenge maintaining that the advertiser’s reference to a “fee” is potentially misleading because consumers understand a “Buy One, Get One” offer to mean that they will be getting a second item for free (or for a nominal separate shipping fee) as stated at the outset of the offer.  NAD determines that this challenge can be resolved in the Fast-Track SWIFT process because it is a pricing claim that can be reviewed without the need for complex evidence or legal argument.  Specifically, the review is limited to whether the terms of the offer were clearly and conspicuously disclosed and prior legal guidance on similar issues.