NAD Reports on Fast-Track Process

Advertising Law

The National Advertising Division (NAD) provided a summary from recent meetings about the proposed procedures for the Fast-Track SWIFT (Single Well-defined Issue Fast Track) process, which the self-regulatory body expects to launch in spring 2020.

The process is intended to review claims that can be resolved efficiently because the issues raised by the challenged advertising do not require complex evidence or argument. The NAD used the example of a “limited time offer” for a sale price of pillows. An advertiser would only need to furnish proof to establish (1) that it previously offered its pillows at a regular price and (2) the length of time it has offered the same pillows on sale.

Alternatively, health-related claims would be too complex for the expedited process, the NAD explained, as would “clinically proven,” comparative performance, efficacy or superiority claims.

Cases will move through the new system with a targeted time frame of four weeks, with challenges limited to a single issue, the NAD said. Participants in meetings about the program cautioned about potential abuse of process, for example in situations where a party files multiple Fast-Track SWIFT challenges at the same time.

The opening challenge letter will be the challenger’s only submission, with details on the platform(s) where the claims appeared, a brief statement identifying the issue presented by the claim and the uncomplicated evidence that the advertiser would need for substantiation, as well as the challenger’s argument and exhibits demonstrating that the challenged claim is misleading.

An initial determination of whether the challenge fits within the Fast-Track SWIFT system will be made, with an option for challengers to transfer to the standard process if the NAD finds the challenge inappropriate for the new program.

Many participants maintained that the advertiser should be permitted to meet with the NAD (by telephone or videoconference) despite the expedited process, with suggestions to issue “softer” decisions than found in the standard process.

Consensus was not reached on whether or when to include National Advertising Review Board appellate review of Fast-Track SWIFT decisions (with a streamlined process proposed if appeals are permitted), whether press releases should be similar to those for regular decisions (or shortened, even down to a one-sentence finding), and whether filing fees should be increased or decreased.

Some workshop participants noted that an expedited process would be of higher value and result in lower overall costs to a challenger—even with higher filing fees—while others advocated for lower filing fees.

Why it matters: The NAD expects a spring 2020 launch for the Fast-Track SWIFT process, noting that it is finalizing procedures and hopes to share them publicly soon. The expedited process will be very helpful to challengers for claims that qualify for the process. These challenges will be resolved much more quickly than challenges under the regular procedures. According to the NAD, cases under Fast-Track SWIFT will conclude within a targeted time frame of four weeks.

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