The BBB National Programs, Inc., parent of the National Advertising Division (NAD), announced on April 2, 2020, the creation of a new "fast-track" process that will supplement the NAD's standard process, entitled Fast-Track SWIFT. Primarily, the "fast track" process is an abbreviated version that will shorten the time between a complaint and a decision to about four weeks but is only for a limited scope of single-issue claims. According to the NAD, a critical mass of BBB National Partners expressed a desire to speed up the standard NAD standard process, which can take as much as four or five times as long to reach a final, published decision. The BBB National Partners include some of the major advertisers in the U.S.

Background

First announced in the fall of 2019 as a work in progress, the Fast-Track SWIFT process was meant to be focused on a single-issue challenge that would not involve consumer communication data or complicated issues of claim substantiation. On January 23, 2020, in a half-day meeting of National Partners and interested advertising law practitioners, the umbrella organization that operates the nation’s premier non-governmental, private, self-regulatory system for advertising appeared to be struggling with how to balance the interests of challengers against those of the advertisers; how to incorporate a fast-track process within the existing system; whether to charge more, less, or the same filing fee as the NAD standard process; and whether the fast-track process threatens the notion of self-regulation. The BBB National Partners then entertained a comment period during which interested parties could express their views on the proposed expedited process. On April 2, 2020, the NAD published a new set of Policies and Procedures governing the Advertising Industry’s Process of Voluntary Self-Regulation (the NAD Procedures). This new version of the NAD Procedures contains the first full articulation of the Fast-Track SWIFT process.

The name of the process

SWIFT stands for “Single Well-defined Issue Fast Track.” A definition of its scope is built into the name of the process: “A challenge is appropriate for Fast-Track SWIFT if it challenges a single well-defined issue, which does not require review of complex evidence or argument, and will be capable of resolution within the Fast-Track SWIFT Timeline. A case that is not appropriate for Fast-Track SWIFT may be suitable for NAD’s standard track process.”

Deciding the appropriateness for Fast-Track SWIFT treatment

Apart from the definition of “SWIFT,” there is no other indication as to what sort of cases will be “appropriate” in the NAD Procedures themselves. This is probably by design. Throughout the process of development, there have been challenges in defining what sort of case would be “in scope.”

To address the vague “appropriate” standard, BBB National Programs has published some additional information on its website, which addresses an initial approach to the new process:

“Initially, NAD will only accept three types of claims for consideration in a Fast-Track SWIFT challenge:

  • The prominence or sufficiency of disclosures including disclosure issues in influencer marketing, native advertising, and incentivized reviews;
  • Misleading pricing and sales claims; and
  • Misleading express claims that do not require review of complex evidence or substantiation such clinical or technical testing or consumer perception evidence.

The website also provides some hypothetical examples of the sort of cases the NAD initially expects will be the subject of Fast-Track SWIFT review. As the program develops, the NAD indicates that it may determine that additional types of claims are appropriate for a SWIFT challenge. The NAD Procedures are general enough to permit substantial flexibility in this regard.

Who can file a Fast-Track SWIFT challenge?

Any person or legal entity may submit a Fast-Track SWIFT complaint to the NAD regarding national advertising, regardless of whether the advertising is addressed to consumers, professionals, or business entities. This is no different from the standard NAD standing requirement.

What must go into a Fast-Track SWIFT complaint?

The complaint must be no more than five typewritten pages (12-point type) and can contain no more than five evidentiary exhibits (each not more than five pages long), plus evidentiary exhibits that contain the challenged advertising. This is significantly less than the limit of 20 pages associated with the standard process.

How do you file a Fast-Track SWIFT complaint?

Fast-Track SWIFT challenges must be filed via the BBB National Programs online portal. Unlike the standard process, there is no need to file hard copies. (With the current coronavirus shutdown, all complaints are currently being submitted electronically.)

What do you submit as the advertiser in a Fast-Track SWIFT proceeding?

After the NAD has notified the advertiser that it has opened a Fast-Track SWIFT proceeding against its advertising, the advertiser (should it choose to participate) may respond in two ways.

It can file an objection to the determination of “appropriateness” (for clarity we will refer to this as the “Objection Response”). This objection must be filed electronically via the online portal. If the advertiser has any other “jurisdictional” objection, it must raise it at this objection stage. By filing an Objection Response, the advertiser essentially requires the NAD to reconsider its prior determination (for clarity we will refer to this as “NAD Reconsideration”).

The advertiser’s Objection Response will be shared with the challenger, but any evidence submitted with the Objection Response will be withheld from the challenger. This will allow an advertiser who is arguing that a case requires a review of complex evidence to share that evidence with the NAD as part of its objection to the process. That evidence will remain confidential even if the NAD moves forward with the Fast-Track SWIFT process.

If the NAD is unconvinced that it made an error in determining the appropriateness of the case for Fast-Track SWIFT treatment, then upon notification of the NAD Reconsideration decision, the advertiser must file a “Substantive Written Answer,” which provides substantiation or arguments concerning the challenged advertising together with supporting evidence. As with the standard process, any confidential data submitted with the Substantive Written Answer can be redacted in accordance with the NAD Procedures.

Alternatively, upon receipt of the complaint, the advertiser may simply submit in the online portal a Substantive Written Answer without any procedural objections, along with supporting data and substantiation, subject to the NAD’s normal confidentiality protections.

What does Fast-Track SWIFT cost?

Speed is affordable, it turns out, especially for large companies. It only costs $5,000 more to file using the Fast-Track SWIFT process. For BBB National Programs National Partners, the filing fee is $30,000, up from $25,000 for the standard process. For Fast-Track SWIFT challenges by companies that are not BBB National Programs National Partners, the cost is $15,000 if the challenger’s gross annual revenue is less than $250 million; $35,000 if the challenger’s gross annual revenue is less than $5 billion; and $40,000 if the challenger’s gross annual revenue is $5 billion or more.

If the NAD determines that the challenge is not appropriate for Fast-Track SWIFT treatment, the challenger gets back all of the filing fee except $5,000, which is considered a processing fee. Thus, for the largest companies who are not BBB National Programs National Partners, the processing fee is 12.5 percent of the filing fee; and for the smallest companies who are not National Partners, the processing fee is 33.3 percent of the filing fee. The risk of the NAD’s vague “appropriateness” standard, therefore, falls more heavily on small companies than on large companies.

In the event that the challenger chooses to convert a Fast-Track SWIFT case into a standard case, the NAD will apply the filing fee to the standard case and retain the $5,000 difference as a processing fee.

Appeals to the National Advertising Review Board (NARB) from a Fast-Track SWIFT decision require a fee of $30,000.

Appeals

There is no appeal available for a determination of “appropriateness.”  Thus, that determination is entirely within the discretion of the NAD staff.

Although appeals to the NARB are reserved for only the advertiser in a Fast-Track SWIFT context, the burden of preparing the case record for the NAD and the challenger rests entirely on the advertiser. In the standard process, the NAD prepares the case record. The failure to prepare and forward a case record to both the NAD and the challenger will result in dismissal of the appeal. The challenger has no right to cross-appeal if the advertiser appeals a Fast-Track SWIFT decision.

All NARB submissions must be sent electronically. The submissions in a Fast-Track SWIFT case appeal consist of the advertiser’s brief, which cannot exceed 15 double-spaced pages. The challenger (and the NAD) similarly may file a brief that does not exceed 15 double-spaced pages.

Unlike in a standard case appeal, in which the composition of the NARB panel is allocated specifically among members of the “public,” “advertising agency,” and “advertiser” categories, in a Fast-Track SWIFT appeal, the composition is completely in the discretion of the NARB chair and will consist of three members rather than five. Unlike standard case appeals that involve an in-person meeting, the meeting for a Fast-Track SWIFT appeal will only be done by phone or video conference.

After a decision is rendered by the NARB panel, the advertiser has the opportunity to submit an advertiser’s statement, which will be included in the final decision and press release.

Meetings

In a Fast-Track SWIFT challenge, meetings will be held via telephone or video conference. There are no in-person meetings permitted.

Compliance

Unlike in a standard case, in which there is a fairly protracted back-and-forth for determining compliance with an NAD or NARB decision that has recommended discontinuation or modification of advertising, for a Fast-Track SWIFT case, after an NAD or NARB panel decision requesting that advertising be “modified or discontinued” is transmitted to the parties, the NAD or NARB (either on its own or at the request of a challenger or a third party) may request that the advertiser report back, within five business days, on the status of the advertising at issue and explain the steps it has taken to bring the advertising into compliance with the decision.

Timing

Because timing and speed are the primary reasons for the existence of Fast-Track SWIFT cases, it is important to focus carefully on the timing provisions for such cases.

  • Clock starts running - If a Fast-Track SWIFT complaint is filed after 4 p.m. Eastern Time (the NAD Procedures are not explicit on time zone, but because the NAD is located in New York City, Eastern Time should be assumed), the challenge is considered received on the next business day. All NAD timeframes are measured in business days, naturally excluding holidays.
  • Initial NAD review for appropriateness - Within two business days of receipt, the NAD will determine whether the challenge is appropriate for Fast-Track SWIFT.
    • If the NAD determines the challenge is not appropriate for Fast-Track SWIFT, the NAD will inform the challenger. After notice, the challenger may transfer the challenge to the standard NAD track or close the challenge.
    • If the NAD determines the challenge is appropriate for Fast-Track SWIFT, the NAD will open the matter by electronically transmitting the Fast-Track SWIFT challenge to the advertiser.
  • Objection Response - Upon receipt of the complaint from the NAD, the advertiser having been challenged in a Fast-Track SWIFT case may file its objections to the “appropriateness” determination (and any other “jurisdictional” objections) within four business days. The NAD must then render an NAD Reconsideration decision on the Objection Response within two business days.
    • If the NAD determines that its original determination on appropriateness was incorrect, then the NAD will inform both parties. The challenger can convert the matter into a standard process case.
    • If the NAD determines that its original determination on appropriateness was correct, then the NAD will presumably inform both parties. 
  • Substantive Written Response - Regardless of whether the advertiser has filed an Objection Response and the NAD has affirmed its original “appropriateness” determination, the advertiser must file its Substantive Written Response within 10 business days from the date on which the NAD transmitted the challenge to the advertiser. Rather than counting days from the last correspondence, it essentially limits any objections and substantive responses to 10 business days from the time the NAD transmits the challenge following its original determination of “appropriateness.”
  • Meetings - All meetings in Fast-Track SWIFT cases with the parties will be held within five business days of the NAD’s receipt of the advertiser’s Substantive Written Response.
  • NAD decision - Within 20 business days after the NAD transmits the challenge to the advertiser, the NAD will issue its decision on the challenged claim and provide a copy to both parties simultaneously. This is different from the standard process in a couple of ways. First, the timing is set from the time the NAD transmits the challenge following its original determination of “appropriateness.”  Second, the advertiser does not get advance notice of the decision. Assuming the full allotment of time throughout the process, the NAD is committing to rendering its written opinion in as few as three business days.
  • Advertiser’s statement - As with the standard process, the advertiser is entitled to add a short statement that will be appended to the final decision. The advertiser has up to five business days to add a statement, which will be included in the press release.
  • Appeals to the NARB - If the advertiser wishes to appeal a Fast-Track SWIFT decision, the advertiser must notify the NAD and NARB within three business days of the NAD’s transmission of its decision to the advertiser, stating that it intends to appeal the decision. The advertiser must prepare the case record, including page numbers, and forward copies electronically to the challenger, NARB, and NAD within eight business days of its receipt of the NAD’s decision.
    • The advertiser’s brief is due within eight business days of its receipt of the NAD’s decision.
    • The challenger’s is due within nine business days after its receipt of the advertiser’s brief.
    • The NARB panel must render a decision within three business days after the panel hearing. 
    • The advertiser may, within five business days of receipt of the decision, submit a statement.