CFBAI_ProgramBackgrounds_4-28-2020

National Advertising Division

The National Advertising Division (NAD) monitors national advertising in all media, enforces high standards of truth and accuracy, and efficiently resolves disputes to build consumer trust and support fair competition. NAD reviews advertising based on challenges from businesses, complaints from consumers, or on its own initiative covering a wide variety of both industries and issues. NAD’s decisions represent the single largest body of advertising decisions in the United States.

Program Impact

NAD was established in 1971 to monitor and evaluate the truth and transparency of national advertising through a combination of independent monitoring and competitor disputes and has become a leading voice in providing guidance on truthful and transparent advertising and standards for substantiating advertising claims. Around 150 cases are handled each year through one of three tracks: Fast-Track SWIFT, Standard Track, and Complex Track. Reports of all case findings can be found in the BBB National Programs Online Archive

 

 

Truth & Transparency

Voluntary self-regulation helps create an honest and fair marketplace. Companies benefit from a level playing field and consumers benefit from a more trustworthy marketplace. A 90% participation rate demonstrates the depth of industry’s commitment to self-regulation and truth and transparency.

Issues We Examine

NAD’s legal team specializes in examining advertising claims for a diverse set of goods and services like telecommunications, infant nutrition, over-the-counter medication, and dietary supplements for a wide variety of issues from product efficacy to influencer marketing and the use of consumer reviews.

Time & Cost

The NAD process resolves advertising disputes efficiently and almost always faster than a court proceeding. There is no document discovery or depositions, no counterclaims, and the process requires less investment in time and cost than litigating a case.

Navigating Uncertainty

NAD has a published body of case precedent and is staffed by decision makers dedicated to resolving advertising disputes, using a process that provides advertisers the right to appeal adverse decisions to the National Advertising Review Board (NARB).
 

For the last 50 years in the advertising industry, companies have held each other to a higher standard. In response to the pressures and criticisms of consumerism that had mounted during the previous decade, in 1971 the advertising industry established the National Advertising Division (NAD) and National Advertising Review Board (NARB), the U.S. mechanism of independent self-regulation that has stood the test of time and technological innovation.

 

Visit NAD50th.org

NAD Challenges

 

NAD offers three options for submitting challenges for review: Standard Track, Complex Track, and Fast-Track SWIFT. Click on the options below for more information on each track's process, challenge eligibility requirements, timeline, and fees to determine which track is best suited to handle your needs. BBB National Programs National Partners receive a discount on filing fees. 

 

 

Fast-Track SWIFT

Single-issue digital advertising cases with decisions in 20 business days. Learn More

Standard Track

Open to a variety of case types with decisions in four to six months. Learn More

Complex Track

Cases requiring complex substantiation. Time to decision is determined by the parties. Learn More

 

 

 

Why Use NAD for Advertising Challenges

When a competitor’s advertising harms consumer trust or threatens a company’s reputation and market share, decision makers need to answer three key questions:

  • Which forum will resolve my challenge most efficiently—federal court, Federal Trade Commission complaint, or NAD challenge?

The NAD process promotes truthful advertising resolving advertising disputes efficiently. Unless advertising is so misleading and causing sufficient harm that a temporary restraining order application will likely succeed, the NAD process is typically faster than a court proceeding.

 

 

  • How much will it cost?

 

Filing a challenge with NAD is almost always more cost effective than other options. There is no document discovery. There is no deposition. The matter cannot be delayed by filing counterclaims. Our streamlined process saves time and money.

 

 

  • What are the risks?

Because NAD has a published body of case precedent and is staffed by decision makers dedicated to resolving advertising disputes, the outcome is more predictable than a court proceeding where individual judges have crowded dockets of a wide array of cases and different decision-making styles. Our procedures provide advertisers with an automatic right to appeal adverse decisions to the self-regulatory system’s peer review body, the National Advertising Review Board.

 

 

 

 

 

NAD’s Monitoring Program

As part of its public interest mission to ensure consumers receive truthful and accurate advertising messages, NAD initiates approximately 20-25% of its cases each year based on its own monitoring of advertising in a wide variety of product categories. The goal of NAD’s monitoring cases is to expand the universe of advertising claims that are reviewed for truth and transparency and provide guidance for future advertising. In determining whether to open a monitoring case, NAD considers whether the advertising meets one or more of the following criteria:

 

  • Targets a vulnerable population (elderly, children, special needs, etc.);
  • Capitalizes on consumer fears or misunderstanding;
  • Fills a gap in regulatory efforts of the FTC and state AGs;
  • Addresses novel or emerging issue of interest for the advertising industry;
  • Concerns claims that consumers cannot evaluate for themselves;
  • Achieves diversity among industries that historically participate in self-regulation.

 

 

 

 

Policies & Procedures


Any company, consumer, or non-governmental organization can file a challenge with NAD. We handle about 150 cases each year and our decisions represent the single largest body of advertising decisions in the United States. The NAD | NARB Policies and Procedures describe the details and parameters of NAD's challenge review process.

News & Blog

 

NAD Recommends Smile Direct Club Discontinue “3x Faster to Use Than Strips” Claim for Tooth Whitening Kit; Finds Certain Other Claims as Puffery

For Immediate Release 

Contact: Abby Hills, Director of Communications, BBB National Programs 

301.412.7769 / ahills@bbbnp.org 

 

New York, NY – July 23, 2020 – The National Advertising Division (NAD), a division of BBB National Programs, recommended that Smile Direct Club (“SDC”) discontinue its “3x faster to use than strips” claim for its Bright On Whitening Kit. However, NAD concluded that in the absence of the “3x faster to use” comparative claim, certain claims constituted non-actionable puffery. The claims at issue, which appeared in website and social media advertisements, were challenged by The Procter & Gamble Company (“P&G”), maker of Crest Whitestrips. 

The advertiser’s Bright On Whitening Kit consists of a paint-on whitening pen plus a blue light device. The whitening pen uses hydrogen peroxide, but its usa instruction calls for a wear time of only five minutes twice a day. Whereas, the challenger markets several different varieties of Crest Whitestrips (with different strip counts and different levels of hydrogen peroxide), some of which contain a blue LED whitening light. Usage times for Crest Whitestrips vary in both length of wear and frequency, but most require a wear time of 30 minutes per day. 

NAD determined that SDC’s claim, “3x faster to use than strips,” conveys a broader message than the evidence can support. While SDC’s Bright On kit may be three times faster to use than the challenger’s Whitestrips products, the comparison to strips – known for their teeth whitening capabilities – reasonably conveys a message of equivalency to tooth whitening outcomes. NAD noted that such inference is reasonable in the context of the challenged advertising, in which the “3x faster to use” claim sits alongside claims of “Premium whitening” and “Brightest bright” smile on product packaging and website advertising. In the absence of evidence that SDC’s Bright On kit offers comparable whitening to Crest Whitestrips, NAD recommended that the claim be discontinued. 

NAD also considered whether the challenged advertisements convey the unsupported message that not only is the efficacy of the parties’ products similar, but that SDC’s product is superior because the benefit is conveyed in less time and that product users will achieve “premium whitening” and their “brightest bright smile” – an inherently comparative message. NAD concluded that in the absence of the “3x faster to use than strips” comparative claim, the claims that SDC’s Bright On offers product users a high quality, “premium teeth whitener” or premium whitening,” and allows users to achieve their “brightest bright” constitute non-actionable puffery. 

In its advertiser’s statement, SDC stated that it will comply with NAD’s recommendations. SDC further stated that it “disagrees with NAD that its expressly true statement that Bright On is ‘3x faster to use’ than competitive whitening strip products also conveys an implied efficacy claim. Nonetheless, SDC respects the self-regulatory process and will therefore update its website to remove that claim.” 

 

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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.   

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.    

Blog

The 2000s Introduced the Internet and Influencers to Ad Law

The 2000s was a decade of change as online advertising exploded and, as a harbinger of things to come, the online environment became fertile ground for innovative ways to both communicate with consumers or, for the unscrupulous, take advantage of unwary consumers. The low barriers to entry allowed disrupters to enter the digital space and forced traditional marketers to compete in this space or be left behind.
Read more
Blog

What is Old is Green Again: Ad Law in the 90s

As we continue to celebrate the 50th anniversary of independent industry self-regulation in the advertising industry by looking at the impact of past decades on advertising law, this month we highlight the Federal Trade Commission’s (FTC) Green Guides, first issued in 1992. The Green Guides were designed to respond to changes in consumer understanding and developments in environmental technology.
Read more
 

 

 

Decisions

NAD Recommends Smile Direct Club Discontinue “3x Faster to Use Than Strips” Claim for Tooth Whitening Kit; Finds Certain Other Claims as Puffery

For Immediate Release 

Contact: Abby Hills, Director of Communications, BBB National Programs 

301.412.7769 / ahills@bbbnp.org 

 

New York, NY – July 23, 2020 – The National Advertising Division (NAD), a division of BBB National Programs, recommended that Smile Direct Club (“SDC”) discontinue its “3x faster to use than strips” claim for its Bright On Whitening Kit. However, NAD concluded that in the absence of the “3x faster to use” comparative claim, certain claims constituted non-actionable puffery. The claims at issue, which appeared in website and social media advertisements, were challenged by The Procter & Gamble Company (“P&G”), maker of Crest Whitestrips. 

The advertiser’s Bright On Whitening Kit consists of a paint-on whitening pen plus a blue light device. The whitening pen uses hydrogen peroxide, but its usa instruction calls for a wear time of only five minutes twice a day. Whereas, the challenger markets several different varieties of Crest Whitestrips (with different strip counts and different levels of hydrogen peroxide), some of which contain a blue LED whitening light. Usage times for Crest Whitestrips vary in both length of wear and frequency, but most require a wear time of 30 minutes per day. 

NAD determined that SDC’s claim, “3x faster to use than strips,” conveys a broader message than the evidence can support. While SDC’s Bright On kit may be three times faster to use than the challenger’s Whitestrips products, the comparison to strips – known for their teeth whitening capabilities – reasonably conveys a message of equivalency to tooth whitening outcomes. NAD noted that such inference is reasonable in the context of the challenged advertising, in which the “3x faster to use” claim sits alongside claims of “Premium whitening” and “Brightest bright” smile on product packaging and website advertising. In the absence of evidence that SDC’s Bright On kit offers comparable whitening to Crest Whitestrips, NAD recommended that the claim be discontinued. 

NAD also considered whether the challenged advertisements convey the unsupported message that not only is the efficacy of the parties’ products similar, but that SDC’s product is superior because the benefit is conveyed in less time and that product users will achieve “premium whitening” and their “brightest bright smile” – an inherently comparative message. NAD concluded that in the absence of the “3x faster to use than strips” comparative claim, the claims that SDC’s Bright On offers product users a high quality, “premium teeth whitener” or premium whitening,” and allows users to achieve their “brightest bright” constitute non-actionable puffery. 

In its advertiser’s statement, SDC stated that it will comply with NAD’s recommendations. SDC further stated that it “disagrees with NAD that its expressly true statement that Bright On is ‘3x faster to use’ than competitive whitening strip products also conveys an implied efficacy claim. Nonetheless, SDC respects the self-regulatory process and will therefore update its website to remove that claim.” 

 

### 

 

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.   

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.    

 

 

 

Upcoming Events

NAD 2021 Annual Conference

Register for NAD 2021 to celebrate 50 years of advertising industry self-regulation and high standards of truth and accuracy in national advertising. Industry, government, agency, and legal profession ...
Learn more
Sep 29, 2021 Virtual

Cardozo Fashion Law Society & Cardozo FAME Center's It's Not Easy Being Green

Hal Hodes, Senior Attorney, National Advertising Division discusses FTC policies and compliance.
Learn more
Oct 04, 2021 Virtual

Veeva Global Summit

Eric Unis, Attorney, National Advertising Division, BBB National Programs joins the Managing Advertising Claims in a Digital and Social World panel
Learn more
Oct 21, 2021 Virtual

Institute for Perception's Current Topics in Sensory and Consumer Science

BBB National Programs Speaker Annie M. Urgurlayan, Assistant Director, National Advertising Division
Learn more
Oct 26, 2021 White Sulpher Springs
 

 

 

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