toggle accessibility mode

Is the NAD Forum Right for Your Advertising Dispute?

By Eric Misterovich

In certain advertising disputes, it may be possible and considerably more affordable to argue the advertising dispute before the National Advertising Division (NAD) of the Council of Better Business Bureaus, rather than taking the matter to court or to some other government entity. The NAD is a branch of the self-regulating Advertising Self-Regulatory Council (ASRC) that is dedicated to investigating and providing guidance on the standards associated with truth and accuracy in national advertising. Advertising disputes, such as disputes over false advertising claims or improper use of comparative advertising, can be reviewed by the NAD and a decision rendered, similar to how a lawsuit is heard and decided by a court.

The NAD offers a dispute resolution option that operates on a system of voluntary compliance and self-regulation. The decisions rendered by the NAD do not carry legal weight like court decisions do, and NAD decisions are not a finding of law. Rather, NAD decisions are guidance on how the advertiser can handle a particular matter to be in compliance with truth in advertising industry standards. Compliance with NAD decisions, although voluntary, is high because a failure to comply could prompt the NAD to refer the matter to the appropriate government entity, which can result in investigations, fines, and other unpleasant consequences for an uncooperative advertiser.

Why Choose the NAD for Advertising Dispute Matters?

There are many benefits to choosing the NAD as the forum for resolving advertising disputes. The NAD process is more affordable than going to court, and it is faster and easier, as well. Complaints filed with the NAD can be resolved in as little as half a year’s time, whereas filing advertising complaints as a legal cause of action with the courts or filing a complaint with the Federal Trade Commission can take upwards of years to be heard and fully resolved.

Although at any point in the NAD process, a particular advertising dispute matter can be referred to the appropriate governmental agency, as a general rule, the NAD process is a way to handle advertising disputes with minimal government involvement. The NAD is not a government entity, but rather is an independent public interest group whose focus is maintaining truth in advertising standards in the industry.

Who Can Bring a Dispute Before the NAD?

Disputes are brought before the NAD in two ways. First, the NAD could initiate a challenge against an advertiser after conducting an investigation launched as a result of NAD’s own advertising monitoring efforts. Second, consumers or market competitors can levy a complaint against a business about how that business is conducting its advertising campaigns.

Is There any Way to Appeal a NAD Decision?

Anyone who is on the receiving end of an unfavorable NAD decision may request that the NAD’s decision be reviewed by the National Advertising Review Board (NARB), which falls under the purview of the National Advertising Review Council. In order to be granted a review by the NARB, all an advertiser must do is request the NAD’s decision be reviewed along with the payment of a fee. Review is automatically granted for advertisers who request it. On the other hand, when a complainant or challenger wants to appeal a NAD decision, the NARB may exercise discretion as to whether or not the NARB will review the matter. The challenger must also provide additional documentation explaining why the NAD’s decision must be reviewed and must provide payment of a fee.

The review process of an NAD decision is similar to how decision in a lower court case is reviewed by an appellate level court. However, rather than being reviewed by judges, the National Advertising Review Board review panel usually consists of professionals who hold industry and consumer interests in maintaining truth and accuracy in advertising standards.

The NAD appeal process is complicated and there is a lot of room in the review process for the inexperienced to make mistakes or to take missteps. If you desire to challenge a NAD decision,  it is prudent that you work closely with an experienced advertising dispute attorney who specializes in NAD advertising dispute matters. It is always beneficial to have someone by your side who knows the ropes when you are handling these types of matters.

Matters Referred to Appropriate Government Entity

At any level in the NAD advertising dispute resolution process (i.e., at the NAD level or at the NAD decision review level), the presiding entity may at any time refer the matter to a government agency as appropriate, pursuant to the NARC Policies and Procedures. Government entities can include the:

  • Federal Trade Commission.
  • Food and Drug Administration.
  • United States Department of Agriculture.
  • United States Alcohol and Tobacco Tax and Trade Bureau.
  • Bureau of Alcohol, Tobacco, Firearms and Explosives.
  • State Attorney General Offices.
  • State Governors Offices.

In many cases, it is undesirable for a government entity to get involved in an advertising matter because when a government entity gets involved it usually means more paperwork, investigations, and additional compliance requirements that consume a lot of time, money, and resources. That is why there is such a high rate of voluntary compliance with decisions made by the NAD.

Advertising disputes can be disruptive to your business and you more than likely will want to handle the matter as quickly and cost-effectively as possible. If this sounds like your particular circumstances, you may want to consider the National Advertising Division of the Council of Better Business Bureaus as a forum in which to handle your advertising dispute matter. An experienced New York advertising dispute attorney can help you assess the pros and cons of using the NAD to resolve your advertising dispute and can help you with the NAD dispute resolution process.

Reach Out to an Experienced Advertising Dispute Lawyer

The professionals at Revision Legal have assisted many businesses with advertising disputes before the NAD.  our experience advertising dispute lawyers have an in-depth understanding of NAD procedure that only comes with years of experience. Please do not hesitate and contact us today using the form on this page or call us at 855-473-8474.

Put Revision Legal on your side