National Advertising Review Board (NARB)

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 companies who are not National Partner members. 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 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). BBB National Programs can waive or reduce the fee for any appellant or cross-appellant who can demonstrate economic hardship.

NARB is currently made up of 99 professionals from three different professional backgrounds: (i) national advertisers (46), (ii) advertising agencies (35), and (iii) public members (academics and other members of the public sector) (18). Each appeals panel consists of three national advertisers, one agency representative, and one public sector representative. The term for membership is two years, and each member is eligible to be re-appointed for two additional two-year terms.

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.

The appeal begins with the submission of the advertiser’s statement. The NAD attorney 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. The panel deliberates after which the NARB Chair will transmit the decision to NAD and then to the advertiser. Within five business days of receipt of the decision, the advertiser must submit a statement agreeing to the Panel recommendations, or it will be referred to an appropriate government agency.

Yes. The fee to appeal or cross-appeal a Children's Advertising Review Unit (CARU) decision to the NARB is $25,000. 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 appeal is granted. If the NARB Chair grants a challenger’s request for an appeal, the challenger submits an additional $20,000 (having already submitted a review fee of $5,000). BBB National Programs can waive or reduce the fee for any appellant or cross-appellant who can demonstrate economic hardship.

The appeal begins with the submission of the advertiser’s statement. The CARU attorney 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. All parties to a matter before the panel shall be given notice of any meeting at which the matter is to be presented to the panel upon scheduling. Such notice shall set out the date and place of the meeting, and the procedure to be followed. The panel deliberates after which the NARB Chair will transmit the decision to NAD and then to the advertiser. Within five business days of receipt of the decision, the advertiser must submit a statement agreeing to the Panel recommendations, or it will be referred to an appropriate government agency.

Yes. The advertiser shall notify NAD and NARB within three business days of NAD’s transmission of its decision to the advertiser, stating that it intends to appeal the decision. An advertiser may not appeal NAD’s decision that a case is appropriate for Fast-Track SWIFT.

All documents shall be transmitted electronically. All advertiser requests to appeal a Fast-Track SWIFT case decision to the NARB shall be filed together with payment by acceptable method in the amount of $30,000, made payable to BBB National Programs, Inc, submitted as per instructions from the NARB Manager. In such cases, NAD will publish its decision and the Advertiser’s Statement in the next Case Reports under the heading “Advertising Referred to NARB.” The Executive Vice President, Policy, of BBB National Programs shall have the discretion to waive or reduce the fee for an appellant or cross-appellant who can demonstrate economic hardship.

The advertiser shall prepare the case record, including page numbers, and forward copies electronically to the challenger, NARB, and NAD within eight business days of its receipt of NAD’s decision. The case record for NARB shall not contain any evidence or facts that are not in the case record forwarded to NAD in the underlying proceeding. If the advertiser submitted confidential information, it shall prepare a redacted case record with page numbers, and forward copies electronically to the challenger, NARB, and NAD, and it shall prepare an unredacted case record with page numbers and forward copies electronically to the NARB and NAD. The failure to prepare and forward a case record will result in dismissal of the appeal.

Within two business days of receiving the case record, either NAD or the challenger may object to the advertiser’s case record and submit suggested case record corrections to the NARB Chair. Within two business days of receiving an objection, the Chair will make a final determination on the objection(s).

All submissions shall be sent electronically. The advertiser shall, within eight business days of its receipt of NAD’s decision, submit electronically to the NARB Chair, addressed as indicated in Section 5.2(B) with a copy to NAD, a letter not to exceed 15 double-spaced pages, 12-point type, explaining its position. The appellant shall send a copy of the letter to the opposing party who shall have eight business days after its receipt to submit a response electronically, not to exceed 15 double-spaced pages, 12-point type, to the NARB Chair with copies to the other party and to NAD. No other submissions shall be made.

Three NARB panel members will preside over a Fast-Track SWIFT appeal. The NARB Chair has absolute discretion to choose which types of members will comprise the panel. A concurring vote of two members is required to decide any substantive question before the panel. The panel will meet at the call of NARB. The NARB Panel Chair will preside over its meetings, hearings, and deliberations. Any panel member may write a separate concurring or dissenting opinion, which will be published with the majority opinion. The appeal will be held by telephone or video conference, at the discretion of the NARB Chair.

The challenger shall have no right to a cross-appeal or to request leave to appeal from a Fast-Track SWIFT decision to NARB.

The process follows the same process as a Standard Track NAD case.

Can I appeal a non-merits issue?

Yes. Pursuant to Section 2.1-O of the Procedures, 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 grounds for a non-merits appeal is that NAD’s decision was clearly erroneous.

In Standard and Complex Track cases, a party’s memorandum raising non-merits issues is due within 5 business days of the receipt by the parties of the NAD record on appeal. The response is due within 7 business days thereafter. NAD may submit written comments on or before the date for the submission of the opposing party’s response. Non-merits appeal submissions are limited to 8 pages, which is not deducted from the total number of pages authorized for that party’s appeal to the NARB panel on the merits issues. 

In a Fast-Track SWIFT case, the advertiser must submit its written submission raising non-merits issues on the same date it submits the record and its merits brief. The challenger’s response is due within 4 business days thereafter. NAD may submit written comments on or before the date for the submission of the challenger’s response. Non-merits submissions are limited to 3 pages which is not deducted from the total number of pages authorized for addressing merits issues.

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.

At the request of NAD, the challenger, or a third party, or at its own initiative, NARB may request the advertiser provide an update on the status of the modifications it has made to its advertising within 10 business days. If the NARB determines that the advertiser has made a bona fide good faith effort to comply with the Panel Decision and no additional changes are not necessary, it will close the inquiry pursuant to Section 8.1(4)(a). If the NARB determines that the advertiser has made a bona fide good faith effort to comply with the Panel Decision and additional changes are necessary, the advertiser will have 5 business days to indicate whether it will make the modifications requested. If the advertiser agrees to make the additional modifications, NARB will close the inquiry pursuant to Section 8.1(B)(4)(c)(i). If the advertiser does not agree to make any additional modifications (or NARB determines no bona fide good faith effort has been made in the first place), NARB will refer the matter to the appropriate government agency pursuant to Sections 8.1(B)(4)(b) and 8.1(B)(4)(c)(ii), respectively. (A press release will also be issued.)

The principal responsibility of the NARB Chair and Vice-Chair (“Chair”) is to serve as the legal advisor to NARB appeals panels. As panel advisor, the Chair reviews the briefs and the NAD record in advance of the hearing, guides the panel members in their preparation, is present during the hearings, advises the Panel Chair as appropriate concerning evidentiary objections at the hearing, attends the panel deliberations, drafts a written decision to document the panel’s decision and recommendations, and circulates the draft to obtain final Panel-member concurrence. The legal advisor does not influence the outcome on truth-in-advertising issues but is ­available to offer guidance on any procedural and jurisdictional issues that may arise. 

In addition, applying a “clear error” standard of review, the Chair decides appeals relating to compliance with National Advertising Division (NAD) procedures or to the exercise of NAD’s jurisdiction. The Chair supervises staff efforts seeking to ensure that NARB decisions are issued timely and without unnecessary delay, and in that capacity rules on party requests for extensions. The Chair also determines whether to grant challenger petitions to appeal an NAD decision, rules on party applications challenging NARB briefs on the grounds that they contain facts or evidence that is outside the NAD record, and issues reports following compliance reviews relating to NARB panel recommendations.