The NAD is a self-regulatory body housed within the Better Business Bureau that offers an alternative venue for dispute resolution among advertisers beyond the federal courts, the Federal Trade Commission (FTC), or state regulators. Usual NAD proceedings last several months. To streamline the time to reach a decision, NAD recently developed new SWIFT (Single Well-defined Issue Fast Track) procedures to contend with single-issue claims such as:

• The prominence or sufficiency of disclosures, including disclosures in influencer marketing, native advertising, and incentivized reviews
• Misleading pricing and sales claims; and
• 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

As the program develops, NAD may permit additional types of claims in a SWIFT challenge.

As these types of claims should not require complex substantiation, NAD will strive to complete its review and issue a decision within 20 business days. A challenged advertiser has an opportunity to object to a SWIFT proceeding, and, if the NAD agrees, to have the matter transferred to the standard NAD track. Appeals of NAD SWIFT decisions can be taken to the National Advertising Review Board, also part of the Better Business Bureau.

Advertisers should note that refusal to participate in NAD proceedings often results in referral to the FTC, who takes these referrals seriously as a way to promote advertising industry self-regulation.

More information on the SWIFT process can be found here.

Next steps

Advertisers who rely heavily on social media influencers should take note. If cease & desist correspondence with a competitor fails to address your concerns, the NAD’s new SWIFT process may provide a useful avenue to escalate your dispute on an accelerated schedule. If you have questions about how these enforcement proceedings could affect your influencer marketing strategy, please contact us.

Authored by Julia Anne Matheson and Brendan C. Quinn