NAD Resolves First Three Fast-Track SWIFT Cases

Advertising Law

Within a month of the launch of the National Advertising Division Fast-Track SWIFT challenge process, the NAD has resolved the first three cases. They involved a 5G claim challenge by AT&T against Charter Communications, a challenge by Church & Dwight against dietary supplement company Pharmavite, and a challenge regarding infant personal care products.

The SWIFT (Single Well-defined Issue Fast Track) challenge process was launched in April to expedite the resolution of NAD challenges that do not require complex evidence or argument. The process enables the NAD to issue a decision within 20 days of the time the advertiser receives the complaint.

The NAD accepts three types of claims for consideration in the SWIFT process:

  • The prominence and 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 as clinical or technical testing or consumer perception evidence.

The NAD has stated that as the program develops it may determine that other types of claims are also appropriate for the SWIFT process. The updated NAD Procedures for SWIFT challenges are here.

These are the first three challenges that were handled under the SWIFT process:

1. AT&T challenged advertising by Charter Communications for Charter’s Spectrum 5G mobile service. Television and radio commercials and the Spectrum website made 5G claims such as “Now with 5G” and “Now we are bringing you 5G.” One television commercial showed a map of the United States labeled “5G.” Charter declined to submit a substantive response to the challenge, arguing that its 5G claim was not appropriate for the SWIFT process because the challenged claim that its 5G service is broadly available is not expressly stated, but is an implied claim which does not fit into any of the limited categories that the NAD has designated as appropriate for SWIFT challenges. The NAD rejected that argument, noting that the express 5G claim appeared throughout Spectrum’s television and radio commercials and website. The NAD stated that it has regularly reviewed advertising for services that are launched with limited availability, and concluded that consumers can be misled if the material limitations of a service are not clearly and conspicuously disclosed. The NAD determined that the express 5G claim and the sufficiency of any disclosures fell within the scope of the SWIFT process. Since Charter failed to submit a substantive response to the challenge, the NAD referred the matter to the appropriate government agencies for possible enforcement action.

2. Church & Dwight challenged advertising for Pharmavite’s Nature Made Multi Complete, Prenatal Multi + DHA Softgels, and Prenatal Gummies. The challenge concerned the sufficiency of disclosures for the claim “clinically proven absorption.” Pharmavite agreed to modify its claim by disclosing the nutrients tested.

3. The third SWIFT challenge was initiated by a maker of personal infant care products against another. The challenge was closed by consent of the parties. In administrative closures, the details of the challenge are not disclosed.

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