In an expansion designed to bring its advertising review jurisdiction in line with those of international self-regulatory organizations and enforcers, the National Advertising Division (NAD) has expanded its review authority so that it not only covers the truth and accuracy of national advertising, but also advertising that portrays “negative harmful social stereotyping, prejudice or discrimination.” In so doing, NAD seeks to adapt its review process to permit the review of ads that cause possible social harm based on stereotypical or discriminatory portrayals. Unlike some international bodies, which are not constrained by the First Amendment, NAD proposes to tether its review to such portrayals that may cause harm because they are misleading and inaccurate.

In a recent conversation with Laura Brett, NAD’s Vice President and leader, she explained that NAD and the Council of Better Business Bureau’s Board felt the “time was right” for NAD to implement this change in light of national concerns over social issues involving gender and race. In a blog post explaining the change, Ms. Brett cites research by Facebook and the United Kingdom’s Advertising Standards Authority cataloging the harms that can be caused by various forms of stereotyping in online and mass media advertising.

For an example of how this might work, we can look to the UK ASA report, which defines “gender stereotype” as “an image or idea of a group or individual based on their gender.” Examples might include advertisements portraying woman as making poor business executives, or males as being bad at rearing children. Such gender stereotypes, when magnified through national advertising, can have a harmful effect on individuals who share those gender characteristics.

NAD’s sister organization, the Children’s Advertising Review Unit (CARU), has long exercised more expansive authority to review advertising that could be “inappropriate” for children. CARU has also implemented new guidelines and has in fact, recently decided two cases that address gender stereotypes, Primark (involving gender-based slogans on childrens’ clothing) and Moose Toys (dolls that featured stereotypical portrayals of women and girls).

While NAD does not currently have any open cases invoking these new provisions, Ms. Brett believes that it might invoke its self-monitoring authority to do so in the future. Although “glasshouse” issues might deter major advertisers from challenging each other on these grounds, Ms. Brett believes that challenges might be filed with NAD by non-governmental organizations or activists, perhaps requesting filing fee reductions or waivers to do so.

The true impact of these changes to NAD jurisdiction remains to be seen. While some have voiced concern about NAD’s newly expanded jurisdiction, because it appears to embody NAD’s potential application of a great deal of discretionary judgment, such initial fears may be overblown. Most reputable, national advertisers have already cleaned up their ads to reflect changes in public sentiment. In addition, since NAD’s ultimate enforcement authority rests on FTC referrals as a backstop against advertisers refusing to participate or failing to comply with its recommendations, the FTC itself is constrained by the First Amendment. Thus, at least initially, only the more egregious and serious cases may end up before NAD.