Category Archives: NAD

When Monsters Exaggerate

By Gonzalo E. Mon on March 13, 2018 Posted in NAD

The Grim Reaper, a mummy, a mad scientist, and a werewolf are riding together on a train after work. No, that’s not the start of a joke, but it is the start of a funny commercial for Spectrum TV. The four characters talk about their weekend plans, as a light rain pelts the train’s windows. … Continue Reading

Think Your Prescription Drug Advertising is Beyond NAD’s Purview? NAD Disagrees.

By Kristi Wolff on February 6, 2018 Posted in Advertising, mHealth, NAD

Those of us who spend our days at the intersection of law and advertising of health products generally accept that the prescription drug world is a universe unto itself, overseen by the FDA pursuant to the Prescription Drug Marketing Act. As prescription drug companies have increased their direct-to-consumer outreach through social media, native advertising, and … Continue Reading

2017 Recap

By Kelley Drye on January 5, 2018 Posted in ADA, Advertising, Advertising Litigation, Class Actions, Consumer Product Safety, Consumer Protection, Federal Trade Commission, Kelley Drye, NAD, Native Advertising, Privacy and Information Security, Promotions, Regulatory Developments, Social Media, State Attorneys General

Most Popular Ad Law Access Posts of 2017 As reported in our Ad Law News and Views newsletter, Kelley Drye’s Advertising Law practice posted 106 updates on consumer protection trends, issues, and developments to this blog in 2017. Here are some of the most popular: New Lawsuit Highlights Risks of Using User-Generated Content FTC Announces $1.3 … Continue Reading

NAD Addresses “Best Selling” Claims

By Gonzalo E. Mon on September 21, 2017 Posted in Advertising, NAD

Benefit Cosmetics advertised that its They’re Real Mascara was the “#1 best-selling Prestige Mascara in the U.S.” and the “#1 best-selling Prestige Mascara in the U.S. for 3 years.” A disclosure linked to the first claim explained that the claim was based on NPD data from July 2015-June 2016, and a disclosure linked to the … Continue Reading

Does the NAD’s Capillus Decision Baldly Contradict the FDA?

By Kelley Drye on September 20, 2017 Posted in Advertising, Food and Drug, NAD

On September 12, the NAD released its decision in its review of the Capillus82 hair growth device (Case #6107). This case is unusual in that it addressed a challenge to a prescription-only medical device, and related closely to the FDA’s clearance of that product to be marketed. The NAD took pains to emphasize that its … Continue Reading

Laura Brett Named New Director of NAD

By Christie Grymes Thompson, John E. Villafranco and Jennifer Fried on August 3, 2017 Posted in Advertising, NAD

More than a month after the retirement of former NAD Director Andrea Levine, the Advertising Self-Regulatory Council (“ASRC”) has announced NAD’s new Director: Laura Brett. Laura Brett, who has served as NAD’s Assistant Director since 2015, joined NAD in April of 2012. During her five years at NAD, Laura has authored several seminal decisions including … Continue Reading

NAD Gives Bill of Good Health to Dietary Supplement Immunity Claims

By Kelley Drye on April 5, 2017 Posted in Dietary Supplements, NAD

The National Advertising Division of the Better Business Bureaus, a self-regulatory body that polices national advertising, recently gave an a-OK to certain dietary supplement immunity claims. The action was initiated under NAD’s partnership with the Council for Responsible Nutrition against dietary supplement maker Olly Public Benefit Corporation. CRN requested that NAD determine whether Olly had … Continue Reading

NAD Director Andrea Levine Retiring After 20 years

By Kelley Drye on March 13, 2017 Posted in NAD

ASRC President & CEO Lee Peeler has announced the retirement of Andrea C. Levine, Director of the National Advertising Division (NAD). During her 20-year tenure, the NAD published more than 2,600 case decisions and built what has been described as the largest body of advertising precedent in the United States. In announcing the retirement, Mr. … Continue Reading

Ad Law News and Views Newsletter

By Kelley Drye on February 17, 2017 Posted in Advertising, Antitrust, Class Actions, Consumer Protection, Dietary Supplements, Enforcement, Fashion and Retail, Federal Communications Commission, Federal Trade Commission, Food and Drug, Kelley Drye, Legislative Developments, NAD, Privacy and Information Security, Regulatory Developments, Social Media, State Attorneys General

Did you know Kelley Drye’s Advertising Law practice produces a newsletter, Ad Law News and Views, every two weeks to help you stay current on ad law and privacy matters? Click here to access our Publication Sign Up and select Advertising and Marketing to subscribe. Find contents from the latest issue below: Click here to view with … Continue Reading

New NAD Decision Addresses Product Reviews

By Gonzalo E. Mon on January 26, 2017 Posted in NAD, Reviews

The NAD recently announced a decision that touches upon various issues related to consumer reviews, including how paid endorsements should be disclosed, a company’s responsibilities regarding the content of endorsements, and the presentation of aggregate reviews. The FitTea website includes a “Results and Reviews” page. At the top of the page are a series of … Continue Reading

Announcing the Advertising and Privacy Law Webinar Series

Please join Kelley Drye in 2017 for the Advertising and Privacy Law Webinar Series. Like our annual in-person event, this series will provide engaging speakers with extensive experience and knowledge in the fields of advertising, privacy, and consumer protection. These webinars will give key updates and provide practical tips to address issues faced by counsel. … Continue Reading

NAD Decision on Savings Claims Holds Valuable Lessons

By Gonzalo E. Mon on December 18, 2016 Posted in Advertising, Fashion and Retail, NAD

The NAD recently issued a decision involving savings claims that holds some valuable lessons for advertisers. Lowes ran TV ads advertising that consumers could get “20% off appliances $396 or more.” Not all appliances in that price range were discounted at 20%, though, and a consumer complained to the NAD, arguing that the retailer had … Continue Reading

FTC Associate Director for Advertising Practices Elucidates the Commission’s Handling of Referrals From NAD

By John E. Villafranco and Jennifer Fried on October 24, 2016 Posted in Advertising, Federal Trade Commission, NAD, Regulatory Developments

The advertising industry’s self-regulatory system may be “voluntary,” but ignoring NAD’s recommendations—or declining to participate when asked—buys advertisers a prompt referral to the Federal Trade Commission. NAD often touts its close working relationship with the FTC. But what becomes of these referrals from the self-regulatory system? At NAD’s annual conference last month, Mary Engle, the … Continue Reading

Protected: 2016 Advertising and Privacy Law Summit Attendee Follow up

There is no excerpt because this is a protected post.

NAD Revisits Crowd-Sourced Substantiation

By Gonzalo E. Mon on September 1, 2016 Posted in NAD, Reviews

Traditionally, when companies wanted to advertise that consumers preferred their product over another product, the companies would substantiate their claim by running a survey. Consumers would be stopped in a mall, called, or contacted online, and asked their opinions. Now that many consumers freely post their opinions online, though, some companies are wondering whether they … Continue Reading

NAD Worries Consumers Will Jump To Wrong Conclusions Over Trampoline Reviews

By Gonzalo E. Mon on August 30, 2016 Posted in NAD, Native Advertising, Reviews

A growing number of consumers read reviews before they decide to purchase a product. Because of this – as we’ve posted various times – regulators and competitors are keeping a watchful on eye reviews that seem biased or inauthentic. The latest challenge comes from a world that isn’t known for its advertising challenges: the world … Continue Reading

Lifestyle Blogging, Supplement Dust, and Third Party Liability

By Kelley Drye on August 10, 2016 Posted in Fashion and Retail, NAD

The NAD recently took a swipe at Goop, the lifestyle blog founded by Gwyneth Paltrow. To make “GP’s Morning Smoothie,” Goop had recommended using “dust” dietary supplements, such as Action Dust and Brain Dust, both sold by Moon Juice. With its usual mix of practical – if also luxurious – wisdom, Goop advised, “Choose your … Continue Reading

The Fountain of Youth May Not Be Stocked With Gin

By Gonzalo E. Mon on June 3, 2016 Posted in Advertising, NAD

A British hotel group recently introduced “Anti-aGin Gin,” a gin that “rejuvenates the skin while you drink.” The gin was marketed to people “who want to stay young but don’t want to give up alcohol.” The company advertised that the gin included “a host of age defying botanicals and, combining them with drinkable collagen, this … Continue Reading

NAD Addresses Disclosures in Native Ads

By Gonzalo E. Mon on May 31, 2016 Posted in NAD, Native Advertising

When the FTC issued its guidance on native advertising last year, the Commission emphasized the importance of ensuring that consumers are able to distinguish ads from editorial content. If the line between the two gets blurred, companies may need to label ads as such. Where the label is placed can be critical, because the FTC … Continue Reading

NAD Decision Addresses Endorsements from Product Testers

By Gonzalo E. Mon on February 25, 2016 Posted in Advertising, NAD

This week, the NAD published a decision involving an infomercial for the Shark Rocket DeluxePro vacuum. Although the decision covers several issues – including comparative claims, product demonstrations, and consumer endorsements – we’re just going to focus on the last one for this post. If you read our blog, you already know that when a company … Continue Reading

NAD Addresses Reviews Incentivized by a Sweepstakes

By Gonzalo E. Mon on October 29, 2015 Posted in NAD, Promotions, Reviews

One maker of insect-control products (United Industries Corporation) challenged claims made by another maker of similar products (The Scotts Company) at the NAD. Among the issues in the challenge was a sweepstakes that Scotts had run to help generate reviews of its products. As part of the sweepstakes, every consumer who submitted a review would … Continue Reading

DirecTV’s Rob Lowe Ads Found to be Misleading

By Gonzalo E. Mon on August 17, 2015 Posted in Advertising, NAD

Last week, we posted about the FDA’s objections to Kim Kardashian’s promotion of a morning sickness drug on social media. In our effort to keep you up-to-date on celebrity advertising law issues, this week we turn our attention back to Rob Lowe’s DirecTV ads. As we noted in April, the NAD had determined that some … Continue Reading

Who’s Watching Dietary Supplement Advertising? Everybody!

By Kelley Drye on July 9, 2015 Posted in Advertising, Federal Trade Commission, NAD

For several years now, dietary supplement advertising has been squarely on the radar of the FTC, state regulators, self-regulators, and last but never least, plaintiff’s lawyers. A recent FTC settlement with the makers of the dietary supplement, Procera, highlights that point. The FTC’s investigation appears to have begun with a nudge from the self-regulatory body, … Continue Reading

NAD Finds DirecTV’s Rob Lowe Ads to be Misleading

By Gonzalo E. Mon on April 13, 2015 Posted in Advertising, NAD

DirecTV has received a lot of attention for its ad campaign featuring Rob Lowe. Although many of the commercials are funny, not everyone is laughing. Comcast challenged the ads before the NAD, arguing that the ads make misleading comparisons between DirecTV and cable. The NAD largely sided with Comcast, and asked DirecTV to stop making … Continue Reading