The National Advertising Division of the BBB National Programs, Inc. (“NAD”) recently announced the launch of its Single Well-defined Issue Fast Track (“SWIFT”) Challenge Process (“Fast-Track Process”) to expedite the resolution of NAD proceedings for certain single-issue cases that do not require complex evidence or argument. NAD’s Fast-Track Process significantly expedites the standard NAD challenge to allow NAD to issue a decision within 20 days from the time the advertiser receives the complaint.
NAD developed this new procedure in response to industry concerns that the standard track process can take too long to address highly repeatable issues. To achieve a 20-day resolution of certain cases, NAD made several changes to the briefing and meeting schedule for Fast-Track Process cases, including those described below.
Only Certain Claims Are Eligible for Resolution Through the Fast-Track Process
The Fast-Track Process is only appropriate for cases involving “a single well-defined issue,” which do not “require review of complex evidence or argument” and will be capable of resolution within the Fast-Track SWIFT Timeline” (NAD Procedures, Section 1.1(F)).
Based on this definition, NAD will only accept three types of cases for resolution using the Fast-Track Process: (1) “[t]he prominence or sufficiency of disclosures for influencer marketing, native advertising, and incentivized reviews;” (2) “[m]isleading pricing and sales claims;” and (3) “[m]isleading express claims that do not require review of complex evidence or substantiation such as clinical or technical testing or consumer perception evidence” (see NAD Fast-Track SWIFT FAQs or BBB National Programs National Advertising Division Fast-Track SWIFT Case Examples). However, NAD has indicated that it may determine other types of claims are also appropriate for Fast-Track as the program develops.
Within two business days of receiving a SWIFT complaint, NAD will assess whether the challenge is an appropriate case to be resolved through the expedited procedure. Should an advertiser believe that the challenge cannot be appropriately resolved through the expedited Fast-Track Process, it can submit an objection within four business days of receiving the complaint, and request that the case be heard under the standard procedure. NAD will then issue a decision on the objection within two business days.
The Fast-Track Process Involves an Expedited Briefing Schedule
Perhaps the most pronounced difference between the Fast-Track Process and the standard NAD procedure is the expedited briefing schedule. Standard NAD proceedings usually involve four written submissions over the course of several months.
In contrast, the Fast-Track Process allows for only two written submissions — the initial complaint from the challenger and a response from the advertiser. As noted above, after the challenger submits its initial complaint, within two business days, NAD will determine whether the case is appropriate for the Fast-Track Process and transmit the complaint to the advertiser. The advertiser then has only 10 business days from the date it receives the complaint to file its response and any supporting evidence, even if the advertiser submits an objection to the Fast-Track Process. The advertiser’s response constitutes the final written submission in the proceeding, and closes the record.
The Fast-Track Process May Involve NAD Meetings by Telephone or Video, but not In Person
While standard NAD proceedings often involve in-person meetings with the NAD, under the expedited Fast-Track Process, NAD will hold only telephonic meetings or video conferences with the parties.
In addition, Fast-Track meetings with the NAD are held on a condensed schedule. The Fast-Track procedure requires that all meetings be held within five business days of submission of the advertiser’s response.
Fast-Track Process Decisions Are Expedited and Advertisers’ Statements Are not Required
As noted above, under the Fast-Track Process, NAD will issue a written decision only 20 days after the advertiser receives the challenge.
Notably, under the Fast-Track Process, the advertiser does not need to submit an Advertiser’s Statement indicating whether the advertiser will comply with NAD’s recommendations or appeal the decision to the National Advertising Review Board ("NARB"). Although the advertiser has the option to submit a supporting statement in response to NAD’s decision, the failure to do so will not result in a referral to the FTC or other agency. Non-compliance with NAD’s decision, however, will still result in a referral.
Only Advertisers May Appeal Fast-Track Process Decisions
The appeals procedure under the Fast-Track Process also involves some notable changes. Under the Fast-Track Process, only the advertiser may appeal the case to the NARB — the challenger does not have that option.
In addition, the Fast-Track appeals process involves an expedited schedule. Specifically, the advertiser is required to submit its appeal letter within eight business days of receiving the NAD’s decision, and the opposing party must submit its response within nine business days after receiving the advertiser’s appeal. Hearings will then be held by telephone or video conference, at the discretion of the NARB chair, and the NARB panel will transmit its decision within three business days after the hearing.
* * *This Alert only contains a general overview of NAD’s new Fast-Track Process, and reflects the authors’ selection of the most notable differences from the standard NAD case procedures. The newly revised NAD Procedures for Fast-Track SWIFT challenges can be found here.