National Advertising Review Board (NARB)

In general, advertisers always have the right to appeal an NAD recommendation to discontinue or modify a claim, while in certain limited circumstances challengers can appeal NAD decisions that reject the challenger’s position (see Question 7). Most NAD decisions are not appealed. In recent years, NARB has resolved as many as 20 appeals per year and as few as five. All appeals are heard by a panel of industry professionals, typically five panelists (three for Fast-Track SWIFT appeals), who are briefed on the applicable legal standards. Each side submits briefs in advance of the NARB hearing and presents arguments at the hearing, which are conducted on Zoom. The panel also has the NAD record, and no facts or evidence not in the record are allowed in the appeal. Decisions are generally issued within 2 1/2 to 3 months of the request for an appeal.

• Standard Appeals: Sections 5.2—5.10.
• Complex Appeals: Same as Standard Appeals.
• Fast-track SWIFT Appeals: Sections 7.1—7.9. 
• Non-merits Appeals: Section 2.1-O.
• Briefing Submission Format: Section 2.1-P.

The NARB panel pool is made up of nearly 100 professionals from three different professional backgrounds: (i) national advertisers, (ii) advertising agencies, and (iii) public members (academics and other members of the public sector). Each appeals panel typically consists of five members, usually three national advertisers, one agency representative, and one public sector representative; appeal panels in Fast-Track SWIFT cases consist of three members. The term for panel pool membership is two years, and each member is eligible to be re-appointed for two additional two-year terms. Meet the Panel Members.

The NARB Manager solicits panelist availability and willingness to serve on a specific panel among those who appear eligible (principally, no apparent conflicts). The NARB Manager takes into consideration the need to give all NARB members a fair opportunity to serve as a panelist while not overburdening other panelists. The NARB Chair does not participate in the selection of panelists unless there is an ethical/conflict issue raised by a panelist or party. See Sections 5.5; 7.4.

Yes. The fee to appeal or cross-appeal an NAD decision to the NARB is $27,000 for National Partner members and $33,750 for non-National Partners. For Complex Track cases, the fee to appeal is $30,800 for National Partner members and $38,500 for non-National Partners. Challengers must include a non-refundable review fee of $5,000 with their letter requesting permission to appeal, which will be credited toward the filing fee for the appeal if the application to appeal is granted. If the NARB Chair grants a challenger’s request for an appeal, the challenger submits an additional $22,000 or $28,750 (National Partner and non-National Partner fees, respectively, for Standard Track cases) or $25,800 or $33,500 (National Partner and non-National Partner fees, respectively, for Complex Track cases). BBB National Programs can waive or reduce the fee for any appellant or cross-appellant that can demonstrate economic hardship. 

Yes, a challenger can cross-appeal any claims/issues not appealed by the advertiser by submitting a request to the NARB Chair within five business days of receipt of the final case decision. In the case of a challenger appeal, the advertiser can appeal additional claims/issues by submitting a request to the NARB Chair within five business days of receipt of the NARB Chair’s decision to allow the challenger appeal. 

When a cross-appeal is filed, the parties have two submissions each: the opening submission and their response to the opposing party’s submission. The rules limit these to 15 pages each (for a total of 30 pages), but the parties may choose to apportion the pages differently, say 20 pages in the first submission and 10 pages in the second, so long as the total does not exceed 30 pages.

The appeal begins with the submission to NAD of the Advertiser’s Statement indicating its intention to appeal. NAD submits the case record to NARB within five business days. When the digitized case record is sent out to all parties, the briefing schedule begins. Within ten business days of receipt of the case record, the advertiser submits its brief to NARB. The challenger submits its brief within ten business days of receipt of the advertiser’s brief. The process will differ if there is a cross-appeal. Hearings take place virtually, during which parties deliver oral arguments and panel members question the parties. NAD is present to answer panelist questions. The panel deliberates and reaches a decision, which is then transmitted to NAD and the advertiser. Within five business days of receipt of the decision, the advertiser must submit a statement agreeing to the panel recommendations, or the file will be referred to an appropriate government agency.

Can a challenger appeal an NAD decision?
Yes, but the standard for a challenger appeal to be granted is that there must be a substantial likelihood that the NARB will reach a different result from the NAD. The NARB Chair makes that determination.

Yes. The CARU appeals process is found at Section 3.1-3.9 of the CARU Procedures. 

Yes. See Section 7.1-7.9 of the NARB Policies and Procedures.

Yes. The process follows the same process as a Standard Track NAD case, found in Section 5.1-5.10 of the NARB Policies and Procedures.

Yes. Section 5.1-A (2) refers to an appeal of “all or a part of” NAD’s decision. Similarly, Section 5.2-A refers to an advertiser’s appeal of one or more “issues” involved in the case. Section 5.2-C allows the challenger to cross-appeal “any additional issues considered by NAD.” Thus, appeals are not limited to NAD recommendations to discontinue or modify a claim but can include legal or factual “issues” addressed by NAD. Such appeals have rarely happened, however.

Yes. 

Yes. Pursuant to Section 2.1-O, an advertiser can appeal a non-merits issue, for example, an issue relating to NAD’s alleged non-compliance with its procedures or to the exercise of NAD’s jurisdiction, and a challenger can do so on a cross-appeal or an authorized challenger appeal. Non-merits appeals are addressed to, and resolved by, the NARB Chair, in advance of the hearing on the merits. The standard for a non-merits appeal is that NAD’s decision was clearly erroneous. 

The NARB Chair may in his/her discretion advise the panel of the resolution of the non-merits issues if the resolution could bear on the panel’s deliberations. A non-merits appeal does not toll any established deadlines for the appeal on merits issues. A party will waive its right to raise non-merits issues if not timely asserted.

Yes.

In most cases, a motion under Section 2.1-O will not delay the scheduling of the merits briefing. If the non-merits issues could be dispositive of the entire appeal, the merits briefing and hearing date may be held in abeyance pending a decision on the non-merits issues.

Yes. There have not been any in-person hearings since the start of the COVID pandemic. There are no current plans to return to in-person hearings.

• Standard Appeal: The advertiser argues first, with 30 minutes for its presentation. Next, the challenger has a 30-minute argument. In the same order, each party has 10 minutes for rebuttal.
• Fast-Track SWIFT Appeal: 20-minute opening arguments and 5-minute rebuttals.
• Complex Track Appeal: NARB will entertain reasonable requests for extra argument time over the standard appeal time allocations.

Sections 5.7-B and 7.6-B allow a party to designate any representative to participate and make presentations at the hearing. All presenting representatives, including experts, must limit their references to facts and evidence to those found in the record. 

If a party chooses to present a PowerPoint during the hearing (which is recommended), they are due three business days before a hearing to allow advance review by the NARB Chair. If the Chair finds facts or evidence not in the record, the Chair will contact the party and request removal. The pre-hearing review does not preclude objections at the hearing.

In certain cases, the PowerPoints are provided to the panelists in advance of the hearing.

Yes. The applicable sections of the Policies and Procedures (Sections 5.3 and 7.2) have been revised to eliminate references to making redactions. The use of the word “redact” may have suggested that a party was obligated to blackout the offending references and resubmit the brief with visible redactions.

Yes. Objections under Section 5.3 to references in an opposing party's brief must be raised within five business days of a party’s receipt of a brief. Failure to raise a timely objection under Section 5.3 does not preclude a party from raising objections at the hearing.

The “scope of appeal” issue is defined by the Advertiser’s Statement or in a challenger’s letter setting forth issues for the challenger’s appeal or cross-appeal. In advance of a hearing, a scope-of-appeal objection can be raised by an application to the Chair following the procedure set forth in Section 5.3. If the scope-of-appeal objection appears to relate to an issue that arguably addresses the merits, the Chair will defer the issue to the panel. The issue can alternatively be raised at the hearing.

We ask parties to consult with the opposing party and try to agree on and submit a proposed schedule. NARB is reluctant to grant extensions on the briefing schedule until the parties have agreed to the hearing date, to avoid any further scheduling delays. 

In Fast-Track SWIFT appeals, NARB does not grant extensions and sets the hearing date without consulting the parties.

Yes, facts or evidence contained within references cited in footnotes in written submissions to NAD are considered in the record, even when those facts or evidence references were not cited in the NAD submissions. Same for references in footnotes in the NAD decision. However, facts or evidence in any citations in the cited references are not considered in the record.

Yes. 

Yes. 

A party need not submit the physical package but can rely on accurate images from a product website.

The full packaging can be used at NARB even if only a partial image was used at NAD.

No, the judicial notice doctrine is not applicable in NARB proceedings.

FDA publications are considered legal authorities, not fact/evidence.

Whether on its own initiative or at the request of NAD, the challenger, or a third party, NARB may request the advertiser to provide an update on the status of the modifications it has made to its advertising. See Section 8.1-B (4) for details on the compliance process. 

No. Under Section 8.1-B (4) (b), the Chair has the option to have the file sent to an appropriate governmental agency if the Chair concludes that the advertiser has not made a bona fide attempt to comply. 

NARB asks the advertiser to address the issues raised by the party requesting a compliance review. 

The protesting party is not entitled to participate, but NARB has the option of consulting that entity and providing it with submissions by the advertiser.