Reed Smith Client Alerts

The BBB National Programs, Inc., parent of the National Advertising Division (NAD), announced on April 2, 2020, the creation of a new "fast-track" process that will supplement the NAD's standard process, entitled Fast-Track SWIFT.  Primarily, the "fast track" process is an abbreviated version that will shorten the time between a complaint and a decision to about four weeks but is only for a limited scope of single-issue claims. According to the NAD, a critical mass of BBB National Partners expressed a desire to speed up the standard NAD standard process, which can take as much as four or five times as long to reach a final, published decision. The BBB National Partners include some of the major advertisers in the U.S.

Authors: John P. Feldman Peter D. Raymond Kathyleen A. O'Brien Jason W. Gordon

Background

First announced in the fall of 2019 as a work in progress, the Fast-Track SWIFT process was meant to be focused on a single-issue challenge that would not involve consumer communication data or complicated issues of claim substantiation. On January 23, 2020, in a half-day meeting of National Partners and interested advertising law practitioners, the umbrella organization that operates the nation’s premier non-governmental, private, self-regulatory system for advertising appeared to be struggling with how to balance the interests of challengers against those of the advertisers; how to incorporate a fast-track process within the existing system; whether to charge more, less, or the same filing fee as the NAD standard process; and whether the fast-track process threatens the notion of self-regulation. The BBB National Partners then entertained a comment period during which interested parties could express their views on the proposed expedited process. On April 2, 2020, the NAD published a new set of Policies and Procedures governing the Advertising Industry’s Process of Voluntary Self-Regulation (the NAD Procedures). This new version of the NAD Procedures contains the first full articulation of the Fast-Track SWIFT process.

The name of the process

SWIFT stands for “Single Well-defined Issue Fast Track.”  A definition of its scope is built into the name of the process:  “A challenge is appropriate for Fast-Track SWIFT if it challenges a single well-defined issue, which does not require review of complex evidence or argument, and will be capable of resolution within the Fast-Track SWIFT Timeline. A case that is not appropriate for Fast-Track SWIFT may be suitable for NAD’s standard track process.”

Deciding the appropriateness for Fast-Track SWIFT treatment

Apart from the definition of “SWIFT,” there is no other indication as to what sort of cases will be “appropriate” in the NAD Procedures themselves. This is probably by design. Throughout the process of development, there have been challenges in defining what sort of case would be “in scope.”

To address the vague “appropriate” standard, BBB National Programs has published some additional information on its website, which addresses an initial approach to the new process:

“Initially, NAD will only accept three types of claims for consideration in a Fast-Track SWIFT challenge:

  • The prominence or sufficiency of disclosures including disclosure issues 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 clinical or technical testing or consumer perception evidence.

The website also provides some hypothetical examples of the sort of cases the NAD initially expects will be the subject of Fast-Track SWIFT review. As the program develops, the NAD indicates that it may determine that additional types of claims are appropriate for a SWIFT challenge. The NAD Procedures are general enough to permit substantial flexibility in this regard.