After an NAD case ends, we are often asked how long the advertiser has to make any recommended changes. If we are working with a challenger, it is always too long. If we work with an advertiser, it is often too quickly. We are often asked if a company needs to begin compliance before a decision is made public. That answer typically is yes. NAD often is more forgiving than the FTC, which expects perfect compliance by the time a consent order is finalized and made public, but is not as patient as it used to be or as patient as many advertisers would like. We previously blogged about an NAD dispute involving dishwashing machine detergent, and a recent compliance decision in the same matter sheds some light on the subject.
The decision from the original case, a challenge by Reckitt Benckiser to Lemi Shine, was dated January 9, with the press release coming out on January 31. Shortly after NAD completed its review but before the decision was released publically, the advertiser released a new product with many of the same claims NAD had recommended be discontinued. The advertiser complained to the NAD, which started a compliance review. NAD published a compliance decision dated March 11 discussing the efforts the company made to date. This is one of the shortest times we have seen between issuance of a decision on the merits and a compliance review decision. While the advertiser submitted to NAD new packaging, which NAD appreciated, NAD expressed that it was “extremely disappointed” that the revised packaging contained some of the claims that were recommended to be discontinued. The NAD also questioned why a YouTube video was still airing that featured claims it recommended be discontinued. The advertiser stated that it had removed the video, presumably between the time when NAD did its check and when NAD sent a compliance investigation notice to Lemi Shine. The advertiser also explained that its labeling was all printed prior to the decision and any new labels would reflect the NAD’s recommendations. The NAD accepted these representations in closing its compliance review. It noted that it understands that changes to labeling and packaging typically take longer.
While not expressly stated, in our experience NAD is of the view that changes to web content can and should happen almost immediately. If there are unique circumstances that affect an advertiser’s ability to make changes to web content, it is best to explain the circumstances to the NAD up front. Similarly, while NAD will not review and approve modified advertising, it is often in the advertiser’s best interest to discuss a compliance plan with NAD proactively, particularly if the challenger in a case will likely closely monitor compliance. Similarly from a challenger’s perspective, it makes good sense to monitor for compliance and raise any significant issues with NAD, making sure not to take positions about timelines that may be difficult to execute when an NAD advertiser.