Kelley Drye


Contact Information

Christie Grymes Thompson
Practice Chair

Washington, D.C.
Phone: (202) 342-8633
Fax: (202) 342-8451

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NAD Proceedings

So You Want to Self-Regulate?

Evaluating the National Advertising Division as standard bearer.

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Kelley Drye’s advertising and marketing lawyers have significant experience in challenging and defending cases before the National Advertising Division (NAD) of the Council of Better Business Bureaus, the premier advertising self-regulatory body in the United States. We help clients take advantage of the NAD’s resolution process to tackle advertising disputes with more speed and efficiency than traditional litigation typically offers. Our attorneys also have experience appearing before the National Advertising Review Board (NARB) when NAD decisions are appealed. Clients benefit from our understanding of the NAD’s process and its sensitivity to balancing consumer protection and free commercial speech.

Our attorneys regularly represent both complainants and respondents in self-regulatory proceedings and in challenges before ABC, NBC, CBS and FOX networks. At the NAD and before the networks, we have been successful in both forcing competitors to modify or discontinue challenged advertisements and demonstrating that our clients’ advertising claims are substantiated.

Representative Experience

  • Represented leading pet food manufacturer in a NAD challenge regarding tartar reduction and "clinically proven" claims for dental dog treats.  The NAD ruled in favor of our client on all challenged claims.

  • Represented a global electronics company in a successful challenge involving comparative advertising claims made by its primary rival with respect to 3D TVs.

  • Successfully represented a Fortune 100 home improvement retailer in challenging two of its competitors before the NAD regarding deceptive sales and promotional practices.  NAD ruled in favor of our client in both challenges.

  • Represented the maker of an over-the-counter allergy drug in an NAD challenge regarding comparative onset-of-action claims. The NAD ruled in favor of our client on all material points.

  • Represented a major over-the-counter headache relief tablet manufacturer in an NAD challenge and an appeal before the National Advertising Review Board (NARB) of the Council of Better Business Bureaus regarding pain relief claims.

  • Represented a leading paint and wall coverings company in an NAD challenge and NARB appeal relating to claims of odor reduction.

  • On behalf of an appliance manufacturer, challenged a competitor’s unqualified germ killing and health-related cleaning and performance claims, endorsement and testimonial claims for ultraviolet vacuum. The NAD recommended that several of the competitor’s claims be discontinued and expressly qualified.

  • On behalf of an air conditioning system provider, challenged the truth and accuracy of a competitor’s express and warranty disclosure claims for HVAC products and 10-year warranty. The NAD recommended that the competitor’s advertisements be modified to clearly and conspicuously disclose the conditions of the warranty.

  • Provided substantiation of performance and warranty claims for exterior paint coating, per the NAD’s request. The NAD determined that a reasonable basis for substantiation of claims was provided by our client, a paint company.

  • Defended a maker of dietary supplements in a challenge regarding substantiation of performance, exclusivity, establishment and expert endorsement claims made in advertising a sleep formula. The ERSP determined that our client had substantiated claims and recommended one minor modification.

  • Defended one of the world’s largest consumer electronics firms in a competitor challenge regarding advertising claims comparing the company’s plasma televisions to competing LCD televisions. The NAD determined that our client had reasonable basis and substantiation for the principal claims, and recommended one modification.

  • On behalf of a Fortune 50 consumer products company, challenged the truth and accuracy of comparative advertising claims made by a competitor. The NAD determined that the competitor’s comparative claims lacked substantiation.

  • Defended the maker of dietary supplements in a challenge brought by a competitor regarding substantiation of establishment, performance and comparative claims. The ERSP determined that our client provided reasonable basis for performance claims.

  • On behalf of a chemistry trade association, successfully challenged advertising claims made by the maker of baby bottles. The claims at issue attempted to exploit a minority of scientific opinion in the sale of baby bottles that do not contain bisphenol-A. The NAD agreed that the claims were unsubstantiated and recommended that they be discontinued.

  • Challenged two advertising claims made by a dating website, which the NAD recommended they discontinue due to lack of substantiation.

  • Challenged advertising claims of a deep cleaner vacuum. The NAD decision in favor of the competitor was reversed by NARB in favor of our client, which was one of only two NARB reversals in the past 10 years.

  • On behalf of a Fortune 500 athletic equipment and apparel manufacturer, challenged a competitor regarding express and implied superiority claims about its ice hockey helmets. The NAD recommended that the competitor discontinue its comparative performance, endorsement and fatigue claims.

  • Challenged a number of claims in an Internet service provider company’s advertisements. The NAD agreed that these claims were misleading, and the competitor agreed to comply with all aspects of the NAD decision, except for the NAD’s recommendation that the company discontinue the broadband comparisons. The competitor appealed this part of the decision, and the NARB rejected their argument, adopting Kelley Drye’s arguments instead and affirming the NAD’s decision.

  • On behalf of a Fortune 100 industrial conglomerate, challenged product packaging claims made by a competitor’s antifreeze product. The NAD recommended that the competitor modify its packaging to substantiate the truth and accuracy of its claims.

  • Challenged the truth and accuracy of a dietary supplement manufacturer’s comparative pricing claims related to a vitamin supplement. The NAD recommended that the competitor discontinue these claims and modify pricing structure to comply with FTC regulations.

  • Challenged truth and accuracy of claims made by a wireless communications service provider regarding the scope of coverage for their in network rate plan. The NAD recommended the company discontinue or modify its claims. In a separate action, demonstrated that our client’s claim that its service was available coast to coast was substantiated.

  • Defended one of the largest enterprise software companies in a challenge from a competitor for claims made in a database software ad campaign. The NAD determined that our client’s price comparison claims were substantiated.

  • Challenged ads implying that a quick service restaurant’s hamburgers contained substantially more meat than our client’s burgers. After the competitor voluntarily promised to discontinue its claims, the NAD closed the case.
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April 24, 2014

Class Actions and a Collision With the NAD

Association of National Advertiser’s Advertising Law & Public Policy Conference

Additional Resources