NAD and NARB Challenges
NAD and NARB Challenges
When it comes to cases brought before the National Advertising Division (NAD) and National Advertising Review Board (NARB), advertisers choose Kelley Drye because of our unmatched experience and knowledge. We bring and defend a substantial number of NAD/NARB challenges every year – perhaps more than any other firm. Kelley Drye has a long and successful record of advocating for clients at the NAD and NARB; and in 2020, we were counsel of record in more than 25 cases and compliance proceedings, a significant percentage of total cases brought and decided over the course of the year.
Our NAD/NARB practice is chaired by John Villafranco.  John worked on his first NAD case in 1991, and has appeared regularly before the NAD and NARB every year since.  John also led a year-long ABA working group that issued the report Self-Regulation of Advertising in the United States: An Assessment of the National Advertising Division.  This influential report led to a number of significant rule changes that have been implemented in recent years.

The core Kelley Drye team of Christie Thompson, Gonzalo Mon, Kristi Wolff, Bez Stern, and Jennifer Fried (former NAD assistant director) regularly appear before the NAD.  The group’s understanding of the relevant precedent and procedures allow it to obtain insights on NAD’s decision-making process, and help craft arguments and hone strategies with confidence about what will be most effective to achieve clients’ goals.
 
Some of Kelley Drye’s recent successes before NAD and the NARB include:
 
  • Successfully petitioned to reopen a decision under the revised rules based on the existence of new evidence. Once the challenge was reopened, Kelley Drye attorneys convinced NAD to reverse its prior decision. This was the first  instance NAD agreed to reopen a prior decision and reverse itself.

  • Bringing the first Fast-Track SWIFT complaint (a new type of NAD action guaranteeing resolution within 30 business days) against an advertiser making unsubstantiated environmental benefit claims. The advertiser voluntarily discontinued the practices at issue immediately after the complaint was filed.

  • Successfully defended a Fast-Track SWIFT challenge against a wireless company regarding the characterization of a graphic image. To date, Kelley Drye has been the only firm to successfully defend a Fast-Track SWIFT challenge.

  • Successfully terminated a national advertising campaign on the basis that a material connection existed between the advertiser and the company performing the network analysis upon which the advertiser relied.

  • Successfully defended a major internet service provider’s use of a “fastest internet” claim, reversing NAD’s decision before the NARB and convincing the NARB to allow the client to make a broader claim than had been recommended make prior to the challenge.

Other cases of note include the following:
 
  • Represented leading pet food manufacturer in an 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 NARB 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 Electronic Retailing Self-Regulation Program (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.
 
 

Overview

When it comes to cases brought before the National Advertising Division (NAD) and National Advertising Review Board (NARB), advertisers choose Kelley Drye because of our unmatched experience and knowledge. We bring and defend a substantial number of NAD/NARB challenges every year – perhaps more than any other firm. Kelley Drye has a long and successful record of advocating for clients at the NAD and NARB; and in 2020, we were counsel of record in more than 25 cases and compliance proceedings, a significant percentage of total cases brought and decided over the course of the year.
Our NAD/NARB practice is chaired by John Villafranco.  John worked on his first NAD case in 1991, and has appeared regularly before the NAD and NARB every year since.  John also led a year-long ABA working group that issued the report Self-Regulation of Advertising in the United States: An Assessment of the National Advertising Division.  This influential report led to a number of significant rule changes that have been implemented in recent years.

The core Kelley Drye team of Christie Thompson, Gonzalo Mon, Kristi Wolff, Bez Stern, and Jennifer Fried (former NAD assistant director) regularly appear before the NAD.  The group’s understanding of the relevant precedent and procedures allow it to obtain insights on NAD’s decision-making process, and help craft arguments and hone strategies with confidence about what will be most effective to achieve clients’ goals.
 

Experience

Some of Kelley Drye’s recent successes before NAD and the NARB include:
 
  • Successfully petitioned to reopen a decision under the revised rules based on the existence of new evidence. Once the challenge was reopened, Kelley Drye attorneys convinced NAD to reverse its prior decision. This was the first  instance NAD agreed to reopen a prior decision and reverse itself.

  • Bringing the first Fast-Track SWIFT complaint (a new type of NAD action guaranteeing resolution within 30 business days) against an advertiser making unsubstantiated environmental benefit claims. The advertiser voluntarily discontinued the practices at issue immediately after the complaint was filed.

  • Successfully defended a Fast-Track SWIFT challenge against a wireless company regarding the characterization of a graphic image. To date, Kelley Drye has been the only firm to successfully defend a Fast-Track SWIFT challenge.

  • Successfully terminated a national advertising campaign on the basis that a material connection existed between the advertiser and the company performing the network analysis upon which the advertiser relied.

  • Successfully defended a major internet service provider’s use of a “fastest internet” claim, reversing NAD’s decision before the NARB and convincing the NARB to allow the client to make a broader claim than had been recommended make prior to the challenge.

Other cases of note include the following:
 
  • Represented leading pet food manufacturer in an 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 NARB 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 Electronic Retailing Self-Regulation Program (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.
Partner
Email (202) 342-8423(202) 342-8423
A member of the firm’s Executive Committee, John Villafranco provides litigation and counseling services, with a focus on advertising law matters and consumer protection. John is highly respe...
Partner
Email (202) 342-8645(202) 342-8645
Donnelly McDowell’s practice focuses on all aspects of advertising and consumer protection law with specialized concentrations in consumer finance, food and drug law, and direct sales and net...
Partner
Email (202) 342-8576(202) 342-8576
Gonzalo Mon’s practice is focused on advertising, transactional, and privacy issues.  He advises a wide range of companies in all aspects of promoting their brands, and works closely wit...
Partner
Email (202) 342-8422(202) 342-8422
Bezalel Stern provides innovative, cost-effective, efficient solutions to meet his clients' needs.  His litigation practice focuses on complex commercial litigation, class action defense, ...
Partner
Email (202) 342-8633(202) 342-8633
Christie Grymes Thompson chairs the firm’s Advertising and Marketing and Consumer Product Safety practice groups.  She focuses her practice on consumer protection matters, including adve...
Partner
Email (202) 342-8805(202) 342-8805
Kristi Wolff is chair of the firm’s Cannabis Law practice.  Kristi focuses her practice on food, drugs, dietary supplements, medical devices, personal care and consumer health products, ...
Special Counsel
Email (202) 719-6022(202) 719-6022
Jennifer Fried is special counsel in the firm’s Washington, D.C. office. Her practice focuses on advertising and consumer protection law. Jennifer, formerly the Assistant Director of the Nati...
Associate
Email (202) 342-8473(202) 342-8473
Lauren Myers is an associate in the firm’s Washington, D.C. office.  Her practice focuses on advertising and marketing, data privacy and information security, product safety, and other c...