National Advertising Division Trends

Fast-Track SWIFT Takes Off

2022 marks the second full year of Fast-Track SWIFT and Complex Track options for Challengers in addition to the traditional Standard Track. Use of the SWIFT program continues to grow, representing 12% of the cases the National Advertising Division (NAD) decided in 2022. In 2023, we can expect to see some changes in the SWIFT procedures reflecting the NAD’s experience handling these cases, which are decided in less than a month, including expanding SWIFT jurisdiction in appropriate cases to implied claim challenges. The Complex Track is slower to take off with only a few cases opting into this process, which is decided by a collaborative panel of NAD staff lawyers. The Standard Track continues to be the primary choice for Challengers, making up 68% of the cases NAD decided in 2022.

FTC Referrals Decline

In the last two years, the number of FTC referrals is down considerably, with only two referrals in 2022 and four in 2021 (whereas prior years generally saw about 10 referrals). Appeals also seem to be trending downward. In 2022, there was around a 40% drop in appeal filings from 2021.

Trends in Case Filings

2022 marked the first year in recent memory that NAD looked at cases involving privacy and data security advertising claims. Perhaps reflecting concerns with the state of the economy, 17% of the cases included a challenge to pricing or value messages. While always a staple at NAD, a surprising 22% of the cases involved superiority claims and another 21% involved health-related claims. NAD focused a good amount of time in its monitoring program looking at environmental and sustainability claims, with such cases representing about 11% of the docket.