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Advertising, Marketing & Promotions Alert >> ABA Committees Recommend Widespread Changes to NAD Procedures and Practices

April 21, 2015

Two committees of the American Bar Association (ABA) have released a 40 page report recommending widespread changes to the procedures and practices of the National Advertising Division (NAD) of the Council of Better Business Bureaus in a stated effort to make the NAD work “even better” than it does today.

Background
The report, entitled “Self-Regulation of Advertising in the United States: An Assessment of the National Advertising Division,” was released by the ABA Section of Antitrust Law’s Advertising Disputes & Litigation Committee and Consumer Protection Committee. The report marks the first time that any ABA committee has reviewed the NAD’s Policies and Procedures and made recommendations for improvements and changes. However, the report itself notes that it does “not necessarily represent the views of the ABA or the Section of Antitrust Law.”

Members of a working group created in June 2014 met a number of times over seven months, dividing their review into these six categories:

1) History and Mission of the NAD;
2) Bringing a Complaint;
3) Presenting the Case;
4) Decision and Press Release;
5) Appeals Process;
6) and Post Review.

The report contains recommendations on all of these subjects. It also expresses “strong support for NAD” and recognizes “the value” and “success” of the advertising industry self-regulatory system at the direction of the NAD. The report concludes that the system “works well” but finds “opportunities for increased efficiencies or improvement.”

Outlined below are the recommendations for change in the report’s six areas of focus.

History and Mission
With respect to the “History and Mission” of NAD, the report recommends that:

1) The funding for the NAD should be “strengthened,” with the Advertising Self-Regulation Council (ASRC) exploring additional funding sources;
2) The funding for the NAD should be made “more transparent”; and
3) The NAD attorney who investigates a prospective case and determines that a case should be opened should not be the same attorney who reviews the evidence, decides the case and writes the decision.

Bringing a Complaint
In this category, the report recommends that:

1) ASRC should clarify the rules governing the NAD’s jurisdiction, including which entities are “advertisers” and whether the NAD has jurisdiction over claims made in connection with charitable solicitation campaigns;
2) ASRC should revisit the page-limit restrictions for complaints and briefs;
3) ASRC should revise procedures to permit, at the NAD’s discretion, a joint case management conference between the parties and the NAD to discuss issues related to length and format restrictions for briefing and scheduling issues;
4) The NAD should limit the scope of its opening letter and its decision to the claims identified and “avoid re-characterizing the claims set forth in the challenger’s complaint”;
5) The NAD should refrain from characterizing the closing of a case in a manner that suggests the claims were unsubstantiated if the NAD did not reach the merits of the case; and
6) Parties should be able to enter into a private settlement agreement terminating the case without the NAD’s approval of the agreement and without issuance of a press release.

Presenting the Case
The recommendations proposing change in this category are that:

1) The NAD should consider adopting different tracks, or a tiered approach, to case management with unique page limits and briefing timelines depending on the complexity and number of claims;
2) The NAD should attempt to assign a related challenge to the same attorney handling the initial challenge (which, as the report acknowledged, it “already appears to do in many such cases”);
3) The NAD should revisit its current expedited review procedures and consider ways to improve the process so that it is more frequently used; and
4) The NAD should explore options for speeding up the scheduling of meetings, such as through the use of videoconferencing.

Decision and Press Release
In this category, the report recommends that:

1) The NAD should no longer include separate statements of each party’s characterization of the facts but, rather, should include a “single and shorter synthesis of relevant facts that reflects the positions of both parties, similar to factual recitations presented in judicial opinions”;
2) If the NAD relies on material information outside of the record, the parties should be given an opportunity to review and respond;
3) ASRC should modernize the online archive and its search functionality;
4) The NAD should issue decisions “in a more timely manner” after the final briefs have been submitted;
5) The advertiser’s statement should be limited to a statement indicating whether the advertiser intends to comply with the NAD’s recommendation to modify or discontinue challenged advertising, not comply, or appeal the decision to the National Advertising Review Board (NARB), and that any statement detailing the reason for disagreeing should be excluded; and
6) ASRC should discontinue its current method of issuing press releases and instead publicly release case abstracts or summaries taken from the NAD decision (except that press releases should continue to be used where an advertiser has refused to participate or to accept the NAD’s recommendations and where the NAD has referred the matter to regulatory agencies or law enforcement).

Appeals Process
Here, the report recommends that:

1) The NAD should not be a party to an appeal to NARB except for appeals of NAD-initiated cases;
2) Current procedures should be revised to provide a challenger an automatic right to appeal to the NARB;
3) The briefing schedule should be altered to permit a cross-appellee a chance to read and respond to cross-appeal arguments, albeit without extending the appeal timeline;
4) New arguments, but not new evidence, should be accepted in the NARB appeals;
5) The NARB should review decisions de novo; and
6) Compliance with the NARB’s decisions should be enforced by the chair of the NARB.

Post-Review
In the final category, the report recommends:

1) More time for an advertiser’s response to a compliance inquiry;
2) Less time for an advertiser’s response to the NAD’s initial recommendation and final decision;
3) That advertisers should be allowed to offer new evidence in support of a claim that has been found to be unsubstantiated when “new factors” have called the underlying decision into question;
4) the NAD should consider allowing an advertiser to petition the NARB chair for permission to appeal a compliance ruling in exceptional circumstances;
5) That although the Federal Trade Commission (FTC) referral process generally should remain as is, “efforts should be made to improve access to information concerning NAD referrals and closing letters”; and
6) That the NAD should not comment on claims that an advertiser decides to withdraw after a challenge is filed.

Bottom Line

The success of the NAD relies on the voluntary cooperation of its many stakeholders. Thus, the industry will need to carefully review the report and its recommendations. Likewise, the NAD will have to consider whether implementing any of the recommendations will create more or less demand, or more or less voluntary cooperation. The NAD is too important an institution to make a mistake. The NAD and its stakeholders need to proceed cautiously or the repercussions could be severe.