At the FTC if a party is investigated and the FTC believes ad claims were not substantiated, a company can settle and typically commits not to repeat the claims at issue unless there is adequate substantiation. In the case of health claims, of course, this is competent and reliable scientific evidence that may be defined with some precision to include one or two clinical trials. But even the worst offenders have the opportunity to make the same claims if they later obtain the necessary level of support.
Apparently not at NAD. If a decision recommends discontinuing a claim and an advertiser agrees, the NAD will not consider new evidence down the road. This has long been their rule and the rationale is that NAD cannot be in the position with compliance monitoring to reopen cases anew. And this makes sense given the lean staffing at NAD. At least up to a point.
A recent case has us wondering if there should be a duration after which decisions should sunset. NAD brought a compliance challenge against Brain Reserve Labs for claims of memory improvement from its dietary supplement Procera. NAD noted it was making similar claims today to ones that were reviewed in 2009. The Advertiser said new studies supported these claims but NAD said “An advertiser in an NAD proceeding, may not, in the absence of extraordinary circumstances, supplement the record or submit new evidence of any kind after the fact, as support for claims made in advertising that was the subject of an earlier (and indeed, long-closed) NAD proceeding.” The NAD sent the case file to the FTC. We are not sure what would constitute extraordinary if not the passage of five years and the possibility that new science means the claims are truthful. But this serves as a good lesson for Advertisers to carefully consider that agreeing to NAD recommendations means permanently. If the Advertiser has new studies or tests in the pipeline while an investigation is underway but where the results are not completed in time to submit, it is advised to bring such work in progress to NAD’s attention in an effort to have some language in the decision that does not foreclose the possibility of future similar claims based on new evidence.