National Advertising Division Fast-Track SWIFT

BBB National Programs National Advertising Division Fast Track SWIFT FAQs


National Advertising Division Fast Track SWIFT Overview:

The steps for filing and responding to National Advertising Division (NAD) Fast-Track SWIFT challenges can be found in the NAD/CARU/NARB Procedures (“Procedures”). The information below is intended as a helpful guide based on those Procedures.


What is NAD Fast-Track SWIFT?

NAD Fast-Track SWIFT (single well-defined issue fast track) is an expedited process for resolving simple, single-issue advertising disputes. In response to industry concerns that the timeline for standard track cases can be too long to adequately address highly repeatable but simple issues, NAD has developed the Fast-Track SWIFT challenge process. NAD’s Fast-Track SWIFT process is designed to quickly and efficiently review advertising claims that involve a single well-defined advertising issue and uncomplicated evidence. For example, influencer posts that may not have the appropriate disclosures are issues that may be handled as a NAD Fast-Track SWIFT challenge. See Procedures section 1.1(F). For more examples, please see our guidance document here.

 

How long will an NAD Fast-Track SWIFT challenge take from beginning to end?

NAD will issue its decision within 20 business days from the day the advertiser receives the challenge. The deadlines for submissions are as follows (business days exclude holidays and weekends):

 

Action Date Notes NAD Procedure Section
Challenge filed. NAD reviews to determine if appropriate for SWIFT  NAD has 2 business days to make initial determination that case is appropriate for SWIFT   Procedures, Sec. 2.2(B) and 2.2(C)(8)
NAD transmits challenge to advertiser (Day 0)   
Procedures, Sec. 2.2(C)(8)
 
Advertiser may object to SWIFT process (Day 4) (advertiser’s option) (NAD will decide in 2 business days)  
Procedures, Sec. 2.5(B)
 
Advertiser’s substantiation (Day 10) (objection to SWIFT process does not toll due date for substantiation)  
Procedures, Sec. 2.5(B)
Meetings (Day 11-15) at NAD’s discretion within 5 business days of receiving advertiser's response. Meeting does not toll time to decision  
Procedures, Sec. 2.8 (B)(2)
NAD decision (Day 20) (sent to both parties simultaneously) Procedures, Sec. 2.9(A)(2)

 

How much does it cost to file an NAD Fast-Track SWIFT challenge?

Information on filing fees can be found in the Procedures section 2.2(B).

 

What types of advertising claims are currently appropriate for an NAD Fast-Track SWIFT challenge?

SWIFT challenges are limited to a single issue. Claims that may be worded slightly differently, but still convey the same message, can be brought in a single challenge. Currently, three types of claims will be considered appropriate for a SWIFT challenge:

  1. The prominence or sufficiency of disclosures, including disclosure issues in influencer marketing, native advertising, and incentivized reviews
  2. Misleading pricing and sales claims
  3. Misleading express claims that do not require review of complex evidence or substantiation such as a review of clinical or technical testing or consumer perception evidence

See our Case Hypothetical Examples here.

As the program develops, NAD may determine that additional types of claims are appropriate for a SWIFT challenge.

 

Filing an NAD Fast-Track SWIFT Challenger’s Complaint:

 

How is an NAD Fast-Track SWIFT challenge initiated?

A challenger submits a SWIFT challenge, with filing fee, via NAD’s online portal. If filed after 4:00 PM ET, the challenge is considered received on the next business day. See “Filing a Complaint,” section 2.2(B) of the Procedures.

 

What information does the challenger need to file an NAD Fast-Track SWIFT complaint?

  • The advertiser’s contact information, including identifying the person to whom the challenge should be directed
  • A copy of the challenged advertising and the date(s) and platforms(s) on which the challenged claim appeared
  • A brief statement as to why the challenged claim is appropriate for the SWIFT process, e.g., how it fits within the categories defined as appropriate for SWIFT review and will not require complicated evidence such as a review of clinical or technical testing or consumer perception evidence
  • A brief description of the facts showing the advertising is likely controlled by the advertiser
  • Arguments and exhibits to support the challenger’s argument may be uploaded, if applicable
  • The filing fee must be received by NAD before the 20-day countdown clock will begin on the claim

 

Do submissions have format and page limitations?

Yes. Briefs should be limited to five pages and five exhibits (with a limit of five pages each). See “Filing a Complaint,” section 2.2(B) of the Procedures.

 

What happens after the NAD Fast-Track SWIFT Complaint is filed?

Within two business days from the date of online filing, after the filing fee has been processed, NAD will determine whether the challenge is appropriate for the SWIFT process. If NAD accepts the SWIFT challenge, NAD will forward it to the advertiser. See section 2.2(C)(8) of the Procedures.

 

What happens if NAD determines that the challenge is not appropriate for the NAD Fast-Track SWIFT process?

When NAD determines a case is not appropriate for Fast-Track SWIFT, NAD will notify the challenger and transfer the case, along with all submissions and the Fast-track SWIFT filing fee, to standard track. If the challenger chooses to withdraw the case, NAD will close the Fast-Track SWIFT challenge and refund a portion of the filing fee. See section 2.2(C)(8) of the Procedures.

 

Advertiser’s Response to an NAD Fast-Track SWIFT challenge:

 

Where will the advertiser send its submission(s)?

An advertiser submits all responses to a SWIFT challenge via NAD’s online portal. If filed after 4:00 PM ET, the challenge is considered received the next business day. See “Advertiser’s Substantive Written Response,” section 2.5(B) of the Procedures.

 

May the advertiser object to the challenge being resolved in the NAD Fast-Track SWIFT process?

Yes. An advertiser has an opportunity to request administrative closure because it believes that the evidence required to substantiate a claim is too complicated to be evaluated in the NAD Fast-Track SWIFT process.

If an advertiser objects to the issue being resolved as an NAD Fast-Track SWIFT case, it should, within four business days after NAD transmitted the challenge to the advertiser, send its objection in writing via the online portal to NAD and the challenger. If an advertiser chooses to file evidence in support of its objection, it may submit any evidence in support of its objection to the NAD Fast-Track SWIFT process confidentially to NAD without providing a copy to the challenger.

If NAD agrees with the advertiser, the case will be closed, NAD will notify the challenger and transfer the case, along with all submissions and the Fast-track SWIFT filing fee, to standard track.  If the challenger chooses to withdraw the case, NAD will close the Fast-Track SWIFT challenge and refund a portion of the filing fee. See “Advertiser’s Substantive Written Response,” section 2.5(B) of the Procedures.

 

If an advertiser objects to the challenge being determined in the NAD Fast-Track SWIFT process, will the challenger be able to respond with counterarguments?

No. If the advertiser submits an objection to the challenge being determined in the SWIFT process, the challenger receives the arguments, but the advertiser may submit any supporting evidence confidentially to NAD. The challenger does not have the opportunity to respond.

 

If an advertiser objects to the SWIFT process, how long will it take for NAD to decide whether Fast-Track SWIFT is appropriate, and what happens next?

NAD will inform the parties within two business days of its decision on the objection. However, the advertiser should assume that the challenge is proceeding as a SWIFT case while NAD is making its decision. The time NAD takes to make its determination does not toll the time for the advertiser’s substantive response.

 

What information should be included in the advertiser’s substantiation submission?

An advertiser’s arguments and exhibits are due ten business days after the challenge was transmitted to the advertiser. Confidential information, if any, can be submitted in accord with NAD procedures, which state that the challenger should be given a separate comprehensive summary of the withheld confidential information. See “Advertiser’s Substantive Written Response,” section 2.5(B) of the Procedures. If the advertiser chooses to voluntarily and permanently discontinue its challenged claim, it should say so in writing. In such instances, NAD will not render a decision on the merits. Rather, NAD will treat this claim, for compliance purposes, as though NAD recommended its discontinuance and the advertiser agreed to comply.

 

Will the challenger be able to respond to the advertiser’s substantiation submission?

No. After the advertiser submits its response, the record is closed. The only submission permitted by the challenger is its initial challenge submission. See “Advertiser’s Substantive Written Response,” section 2.5(B) of the Procedures.

 

Meetings, Decision, and Press Release:

 

Will the parties have an opportunity to meet with NAD?

Meetings are held at NAD’s discretion and will occur via telephone or video conferencing. Meetings will be scheduled within five business days of the advertiser’s submission.  A parties' unavailability for a meeting within the five-day time period will not toll the time to decision. The parties may schedule meetings in any order (e.g., challenger meeting does not have to occur first, although it is preferred). See “Additional Information and Meetings with the Parties,” section 2.8(B)(2) of the Procedures.

 

What can we expect the meeting with NAD to be like?

The meeting is an opportunity for both parties (ex parte) to discuss their positions with NAD, and for NAD to ask follow-up questions. Any discussion must be limited to arguments and evidence already in the record.

 

When will NAD issue its decision?

NAD will issue its decision no later than twenty business days after the challenge is transmitted to the advertiser and will send it to both parties simultaneously via email. Once the decision is sent, it will also be published in the BBB National Programs online archives. See “Final Case Decision,” section 2.9(A)(2) of the Procedures.

 

Will NAD issue a press release? May the advertiser submit an Advertiser’s Statement?

Press releases will only be issued when the SWIFT challenge results in an NAD decision or upon refusal/failure to participate in the SWIFT process, not upon administrative closure. Press releases will cover aggregated SWIFT decisions and will be issued on either a monthly or quarterly basis, depending on the volume of SWIFT cases. Advertisers may, if they choose, submit an Advertiser’s Statement to be included in the decision when the press release is issued. See “Advertiser’s Statement,” section 2.9(B)(2) of the Procedures.

 

Appeals:

 

Is the advertiser permitted to appeal an NAD Fast-Track SWIFT decision?

Yes. Advertisers may appeal by right. See “Appeals,” section 3.1(A)(2) of the Procedures.

 

What does an NAD Fast-Track SWIFT appeal cost?

The filing fee for appeals is $30,000. See “Appeals,” section 3.1(A)(2) of the Procedures.

 

Is the challenger permitted to appeal a SWIFT decision?

No. Challengers may not appeal or cross-appeal.

 

What is the timeline for an appeal?

See “Appeals,” section 3.1 through “Govern Appeals,” section 3.8 of the Procedures.

  • Day 0: The clock starts to run when NAD sends the decision to the parties, which is day 0.
  • Day 3: The Advertiser’s statement of appeal is due.
  • Day 8: The Appellant’s brief is due. The Appellant must submit an electronic version of the entire record with numbered pages to NAD, NARB, and the challenger—see Procedures 3.1(C). Where necessary, the advertiser can supply a non-confidential and confidential appeal record. The appeal brief must not exceed 15 pages double-spaced (12-point type). No extensions of time will be granted.
  • Days 10-14: Any objections to the case record are due. The challenger or NAD may object to the advertiser’s case record and submit to the NARB Chair suggested case record corrections. Within two business days of receiving an objection, the Chair will make a final determination on the objection(s).
  • Day 17: The Appellee’s responsive brief is due. The appeal brief must not exceed 15 pages, double-spaced, 12-point type. No extensions of time will be granted.
  • Oral arguments before the NARB panel will be held via video conference with an NARB panel and will be scheduled by NARB.
  • On Day 3 after oral argument, NARB will issue a decision. See “Timing and Reporting of Panel Decisions,” section 3.7 of the Procedures.

 

I still have questions about the NAD Fast-Track SWIFT challenge process; who should I contact?

Please send any inquiries about the SWIFT challenge process or appeals via email to NADfasttrack@BBBNP.org. NAD will try to respond as quickly as possible.