Frequently Asked Questions
The below represent the most asked questions we receive at the National Advertising Division. We will continue to update this page as new questions come up. Want to submit a question to be added to this page? Let us know at nad@bbbnp.org.
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Overview
The National Advertising Division, often called NAD, was formed in 1971 by the advertising industry in response to calls for government regulation of advertising. NAD’s public interest mission is to seek to ensure that advertising claims are truthful and accurate for consumers and that advertisers operate on a level-playing field. NAD assesses the truth and accuracy of claims made in national advertising via three case track options for competitor challenges (Standard Track, Fast-Track SWIFT, and Complex Track) or through its own monitoring efforts.
No, the National Advertising Division is a unit of the independent, non-profit organization, BBB National Programs. BBB National Programs is not a government entity, nor is it affiliated with a government agency.
Participation in the self-regulatory process is voluntary. However, pursuant to the NAD/NARB Procedures, if an advertiser refuses to participate or refuses to comply with NAD’s recommendations, NAD will refer the matter to the appropriate regulatory agency, which is typically the Federal Trade Commission (FTC). A press release will be issued to this effect. NAD referrals receive priority treatment from the FTC so an advertiser can expect a call from an FTC attorney who is assigned to the referral. Advertisers who initially refuse to participate often return to NAD, and those who refused to comply with NAD’s recommendations often end up modifying their advertising. NAD may also report misleading advertising to the platform on which it was found, including Facebook, for review as to whether the challenged claims comply with platform advertising policies.
First, select a track: Fast-Track SWIFT, Standard Track, or Complex Track.
Fast-Track SWIFT
- A Fast-Track SWIFT (Single Well-defined Issue Fast Track) challenge is limited to a single well-defined issue, which does not require review of complex evidence or argument and will be capable of resolution within 20 business days. SWIFT claims are not limited to digital advertising and can include any single issue in any media.
- Timing: The filing fee must be received by NAD before the 20-day countdown clock will begin on the claim. Learn more about SWIFT challenges.
- A challenge can only be commenced by filing via the online portal. Learn more about what is required for a SWIFT challenge.
- If NAD determines that the challenge is not appropriate for Fast-Track SWIFT, the challenger has the option to refile the challenge in the Standard or Complex track or close the challenge.
- Please see the NAD/NARB Procedures for more information.
Standard and Complex Tracks
- Standard and Complex Track challenges are filed using the online portal. Challenges in both tracks are commenced with an opening letter.
- The opening letter should list the claims challenged, explain why the claims are misleading, attach any available evidence that demonstrates the claims are misleading, including testing, studies, research, or surveys, and link to the challenged advertising or provide copies if advertising is not available digitally.
- Standard Track is the default track to which any challenge over which NAD has jurisdiction may be submitted. Learn more about Standard Track.
- Complex Track is designed for challenges that require complex claim substantiation. Learn more about Complex Track.
Local vs National Advertising
- NAD Fast-Track SWIFT is an expedited process for resolving simple, single-issue advertising disputes and that does not require review of complex evidence in 20 days. NAD Fast-Track SWIFT was developed in response to industry concerns that the timeline for standard track cases is often too long to adequately address common simple issues with uncomplicated evidence.
- A Standard Track challenge generally involves more than one issue and may involve complicated evidence which requires a lengthier review process. The Complex Track, however, is an enhanced process for challenges that require complex claim substantiation providing businesses and their counsel with a customized experience consisting of flexible and more predictable scheduling, greater transparency into the case review process, and deeper insights into NAD’s perspective on the evidence.
- Complex Track cases involve complex substantiation, such as challenges that may include multiple expert reports or scientific or other technical evidence that requires significant time to analyze, or that involve numerous claims made for a variety of different products.
Yes. All standard challenges made by companies and/or competitors shall be filed together with payment (see below for amount) to BBB National Programs as a filing fee. Information on Fast-Track SWIFT filing fees can be found here, Standard Track filing fees can be found here, and Complex Track filing fees can be found here. Filing fee waivers or partial waivers are available if economic hardship is demonstrated.
- The filing fee shall be accompanied by a statement indicating the category into which the challenger’s revenues fall. In the case of a challenge filed by a subsidiary, the filing fee is determined by the gross annual revenue of the parent company.
- If a case is opened but subsequently administratively closed for any reason other than consent of the parties pursuant to Section 2.2(E), 50% of the filing fee will be refunded.
If the advertiser agrees to comply with any recommended changes to their advertising, the case is closed. If the advertiser does not agree to comply, it is referred to the FTC and other appropriate regulatory agencies. NAD may also report misleading advertising to the platform on which it was found, including Facebook, for review as to whether the challenged claims comply with platform advertising policies.
If the advertiser appeals or a challenger’s request to appeal is granted, the case will be reviewed by the National Advertising Review Board (NARB).
The Process
The burden of proof is on the advertiser in an NAD challenge. The challenger may submit evidence that demonstrates the challenged advertising claims are not truthful and accurate.
Except for the Fast-Track SWIFT cases, which are completed within 20 business days, the review process can take from four to six months depending on the complexity of the case. Complex Track cases may take longer. Both parties usually have the opportunity to submit two letters in support of their arguments, with the advertiser providing the final submission.
- The advertiser’s submission should explain why the challenged advertising claims are supported and provide evidence substantiating any advertising claims that require support, as well as assert any jurisdictional objections to the proceedings. NAD will evaluate the evidence provided as substantiation for reliability. As a result, summaries or excerpts of test results are unlikely to provide sufficient information for NAD to evaluate the reliability of the evidence.
- 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.
- 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. The advertiser must provide NAD with both the redacted/summary and unredacted version of the written response.
If there is a government inquiry, NAD would not close the case. Cases are only closed if the advertising is the subject of a federal government agency consent decree or order. If there is pending litigation, NAD will ask to see a copy of the complaint in the pending court case. If NAD determines that the claims challenged are the subject of pending litigation, NAD will advise the challenger that the complaint is not, or is no longer, appropriate for formal investigation in this forum and will administratively close the case file and report this action in the next issue of the NAD/CARU Case Reports. If only some of the claims are the subject of pending litigation, NAD will advise the advertiser that the case will proceed as to the claims that are not the subject of pending litigation. See Section 2.1 of the Procedures.
- If an advertiser informs NAD in writing that some or all challenged claims were permanently discontinued prior to the commencement of the challenge and that the claims at issue will not be used by the advertiser in any future advertising for the product or service, then NAD will administratively close the case file as to those claims. If all claims were permanently discontinued prior to the commencement of the inquiry, the entire matter will be administratively closed, and NAD will report this action in the next issue of the NAD/CARU Case Reports.
- If the advertiser chooses to voluntarily and permanently discontinue some or all of the challenged claims during the inquiry, it must so indicate in writing. NAD will not render a decision on the merits regarding the permanently discontinued claims. Rather, NAD will treat the claims, for compliance purposes, as though NAD recommended their discontinuance and the advertiser agreed to comply.
See Section 2.1 of the Procedures.
Meetings, Decisions, Announcements
NAD almost always offers the parties an opportunity to meet and discuss the advertising challenged and the substantiation provided. The parties meet with NAD separately. The challenger’s meeting takes place first followed by the advertiser’s meeting. NAD’s case manager will contact the parties during the challenge to schedule meetings.
The meeting is an opportunity for parties 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. Often parties prepare a presentation, but such a presentation is not required. Each party has the discretion to bring representatives from the business or other experts based on the issues and evidence before NAD. There is no time limit for the meetings and the length of the meeting depends on the complexity and number of issues associated with the challenge but generally meetings last 60-90 minutes.
- The use of NAD’s decision for publicity purposes by either party is strictly prohibited. NAD can and has issued press releases admonishing companies who have violated this important part of NAD’s procedures. Either party can refer anyone interested in learning more about the inquiry to the NAD decision.
- NAD also reserves the right to refuse to open or to continue to handle a case where a party to an NAD proceeding publicizes, or otherwise announces to third parties not directly related to the case the fact that specific advertising will be, is being, or has been, referred to NAD. It is essential to uphold the confidentiality of the proceedings to maintain a professional, unbiased atmosphere in which NAD can affect a timely and lasting resolution to a case in the spirit of furthering voluntary self-regulation of advertising and the voluntary cooperation of the parties involved.
NAD’s Monitoring Program
A letter from NAD opens any inquiry and identifies the claims and advertising to be reviewed, the deadline for a response, and the NAD attorney assigned to the matter. Advertisers are also given a contact at NAD who can explain the process or handle any requests for extending the deadline for a response.
Typically, NAD will meet with the advertiser and may ask for additional information either before or after the meeting. The meeting allows both NAD and the advertiser to ask any questions they have about the advertising claims, the support for the claims, and the process itself.
When NAD reaches its decision, NAD sends a draft decision to the advertiser who has five (5) business days to submit an advertiser’s statement indicating whether it will comply with or appeal NAD’s findings in whole or in part.
Participation in the self-regulatory process is voluntary. However, pursuant to the NAD’s procedures, if an advertiser refuses to participate (or does not respond to NAD’s opening letter) or refuses to comply with NAD’s recommendations, NAD will refer the matter to the appropriate regulatory agency, usually the Federal Trade Commission (FTC), and issue a press release. The FTC keeps a transparent record of referrals from divisions of BBB National Programs, including NAD. Frequently, after a referral to the appropriate regulatory authorities, advertisers who refuse to participate will return to NAD and those who refused to comply with NAD’s recommendations will modify their advertising.
You do not need to hire an attorney; however, legal counsel on the laws and guidance on advertising claim substantiation can be beneficial.
The inquiry letter you receive concerns only your advertising. However, NAD encourages companies that believe a competitor’s advertising is misleading to open a competitor challenge – either a Single Well-Defined Issue Fast Track (SWIFT) or Standard Track challenge. Although a competitor challenge requires a filing fee, filing fees are tiered based on the size of the company and can be waived in full or in part based on a showing of financial hardship.
NAD does not preapprove advertising claims. However, NAD’s decision and the decisions on its online archive spanning nearly 50 years (available by subscription or per-case basis) provide a wealth of information to help you craft advertising going forward.
NAD initiates its monitoring cases through its own review of advertising and can evaluate a suggested monitoring case against its monitoring criteria, described above.
Fast-Track SWIFT
If you have questions about the Fast-Track SWIFT process or the coordinating appeals process after reading through these FAQs, you may send inquiries to NADfasttrack@BBBNP.org.
Overview
NAD will issue its decision within 20 business days from the day the advertiser receives the challenge and payment of the fee has been received by BBB National Programs. The deadlines for submissions are as follows (business days exclude holidays and weekends). The deadlines for submissions are as follows (business days exclude holidays and weekends). View this table as an infographic.
| Action | Date | Notes | NAD Procedure Section |
| Challenge filed and NAD reviews to determine if appropriate for SWIFT | NAD has 2 business days to make initial determination that case is appropriate for SWIFT | Procedures, 6.1(C) | |
| NAD transmits challenge to advertiser | Day 0 | Procedures, Sec. 6.1(C) | |
| Advertiser may object to SWIFT process | Day 4 | Advertiser’s option (NAD will decide in 2 business days) | Procedures, Sec. 6.2(A) |
| Advertiser’s substantiation | Day 10 | Objection to SWIFT process does not toll due date for substantiation | Procedures, Sec. 6.2(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. 6.3 |
| NAD decision | Day 20 | Sent to both parties simultaneously | Procedures, Sec. 6.4(A) |
Fast-Track 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. Initially, NAD will only accept three types of claims for consideration in a Fast-Track SWIFT challenge:
- Misleading express or implied claims that do not require review of complex evidence or substantiation such clinical or technical testing or consumer perception evidence
- The prominence or sufficiency of disclosures including disclosure issues in influencer marketing, native advertising, and incentivized reviews
- Misleading pricing and sales claims
Process
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 6.1(A) of the Procedures.
Challenges are submitted via the Fast-Track SWIFT online portal and must include:
- The advertiser’s contact information, including identifying the correct person to whom the challenge should be directed
- A copy of the challenged advertising and the date(s) and platforms(s) the challenged claim appeared
- A brief description of the facts showing how the advertising is likely controlled by the advertiser
- Exhibits to support the argument that the challenged claim is not substantiated (if applicable).
- A brief statement as to why the challenged claim is appropriate for the SWIFT process
- All briefs should be limited to no more than five pages.
See “Filing a Complaint,” section 6.1(A) of the Procedures.
Advertiser's Response to the Challenge
Yes. An advertiser has an opportunity to object that a case is not appropriate for review in the NAD Fast-Track SWIFT process because it believes that the evidence required to substantiate a claim is too complicated to be evaluated in SWIFT, or because of jurisdiction.
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, NAD will notify parties and the challenger will have the option to refile the challenge in the Standard or Complex track or close the challenge. 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 "The Advertiser's Objection and Substantive Written Response," Section 6.2 of the Procedures.
No. If the advertiser submits an objection to the challenge being determined in the SWIFT process, the challenger receives the arguments, and the advertiser may submit any supporting evidence confidentially to NAD. The challenger does not have the opportunity to respond.
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.
Meetings, Decisions, Announcements
NAD will issue its decision no later than twenty business days after payment is received and the challenge is transmitted to the advertiser. The decision will be sent to both parties simultaneously via email. Once the decision is sent, it will also be published in the BBB National Programs Online Archives. See “The Final Case Decision” and “Publication of the Case Decision,” sections 6.4(A) and 6.4(C) of the Procedures.
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 6.4(B) of the Procedures.
A summary of the case decision will be published when the SWIFT challenge results in an NAD decision. The decision summary may cover aggregated SWIFT decisions or be issued after the decision has been sent to the parties.
Appeals
See “Appeals,” section 3.1 through “Govern Appeals,” section 7.1 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 "Appellate Case Record," Section 7.1(D) of the Procedures. 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.