Now that 2020 is in the rearview mirror (*collective sigh of relief*), we wanted to share our perspective on notable decisions and trends from this past year at the National Advertising Division and the advertising self-regulation industry's appellate body, the National Advertising Review Board.

2020 was another busy year at NAD, with more than 100 closed cases. Over 20 of those were monitoring cases NAD initiated. In its monitoring role, NAD unsurprisingly focused on COVID-related claims, including disinfecting and immune support claims that reasonably implied some form of protection against infection from or symptoms caused by the coronavirus. NAD also initiated monitoring cases in other areas, including dietary supplements and household products.

2020 continued NAD's track record as a challenger-friendly forum. The high percentage of outcomes favoring the challenger is a reflection of the burden of proof — in contrast to litigation, in NAD proceedings the burden of proof is on the advertiser, and it is a heavy burden: the advertiser must substantiate all reasonable takeaways from its advertising, not just the messages the advertiser intends to convey or contends are the most reasonable takeaways. In addition, following the FTC's lead, NAD gives particularly intensive scrutiny to health-related and product performance claims. As a result, challengers won, in whole or in substantial part, in over 90% of 2020 NAD cases. That said, advertisers making non-health and non-performance claims (e.g., savings claims and comparisons of product features or ingredients) fared somewhat better overall, as they were more likely to receive a recommendation to modify their claims, rather than discontinue them altogether. We expect these trends to continue in 2021 and beyond.

Last year was also notable for procedural changes at NAD. In addition to NAD's existing "standard track," it introduced Fast-Track SWIFT for challenges that present a single and well-defined issue that does not require complex substantiation. NAD also introduced its Complex Track for cases that do require particularly complex claim substantiation evidence. While NAD has not issued any Complex Track decisions to date, it has published nine Fast-Track SWIFT decisions and we expect to see more soon. According to NAD, it has successfully kept its promise to resolve Fast-Track SWIFT cases within 20 business days, with the average time a speedy 10 business days from case opening to decision.

Over 20 NARB appeals were filed in 2020, with 15 decisions published to date. Hot areas included the telecommunications space, household products, and health-related claims. As discussed below, one trend we observed, and frankly find concerning, is NARB's consistent deference to NAD on procedural issues. This deference is inconsistent with the directive in NARB's Procedures that "In making its decision, the panel shall exercise its own independent judgment on the issues presented and shall not give deference to NAD's findings and recommendations."

In 2020, NARB panels affirmed NAD's recommendations in their entirety in seven out of fifteen published decisions. In four cases, NARB reversed a core part of NAD's decision and allowed an advertiser to continue making claims that NAD had recommended be modified or discontinued. And in the other four cases, NARB reversed NAD to some lesser extent (e.g., recommending an advertiser modify a claim instead of discontinuing it altogether). Given that an NARB appeal affords a party a second bite at the apple, at least on substantive issues, we expect the number of NARB appeals to continue to grow.

Below are cases that caught our eye during 2020 for one reason or another, grouped into categories to help you find cases that may be of particular interest. We hope you find this report helpful as you plan for 2021.

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Proskauer On Advertising Law: Key 2020 Decisions From The NAD And NARB

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