Overview
In competitive markets, a single advertising claim can tip the balance. How do you ensure your truthful claims are protected from competitors, and how do you fight back when a misleading claim puts you at a disadvantage?
These types of advertising disputes are decided by the National Advertising Division (NAD) and the National Advertising Review Board (NARB). To successfully advocate at the NAD, you need a legal team with an intimate understanding of how the NAD works and close relationships with NAD attorneys.
Manatt works with clients to respond quickly and effectively to NAD challenges as the Advertiser and to craft strategically tailored briefings as the Challenger, highlighting the opponent’s pain points. Over the past decade, Manatt attorneys have been among the most frequent advocates in NAD proceedings, with successful outcomes across scores of NAD challenges, NARB appeals and compliance challenges. Whether you find yourself as an Advertiser or Challenger at the NAD, our out-of-the-box strategic deployments allow for cost-effective and business-friendly results.
“The Manatt, Phelps & Phillips team is very responsive and delivers well-reasoned, practical advice in advertising law.”—Client feedback, Best Law Firms®
Widely recognized among the top advertising law firms in the country, including “Law Firm of the Year” for Advertising Law in Best Law Firms, Manatt is known for:
- Responsiveness to our clients
- Quick turnaround with high-quality work
- Litigation experience when needed, including Lanham Act claims
- Practical guidance that avoids costly diversions, such as unnecessary consumer surveys
Advertising compliance and strategy
We help advertisers substantiate claims and prepare for NAD scrutiny before campaigns launch. Beyond our NAD standard track advocacy, our support extends to:
- SWIFT filings—Manatt has prevailed in challenges from initial engagement to initial filing in under 48 hours—and rapid responses to SWIFT NAD challenges
- Complex challenges, where our close relationships with experts and our world-class Food and Drug Administration practice are often used to our advantage
- Pre-clearance and substantiation best practices
NAD and FTC coverage under one roof
Our regulatory experience means clients can count on seamless support for advertising challenges before the NAD and federal regulators like the Federal Trade Commission (FTC). We help ensure continuity and compliance across all platforms. Our lawyers are unique in the industry, with the same attorneys regularly practicing at the NAD, at the FTC and in post-FTC litigation.
With Manatt, advertisers gain a strategic partner that helps defend claims quickly, reduces risk and keeps their business objectives front and center.
Experience
Representative successes of the members of Manatt’s NAD Practice team before the NAD and NARB include:
- Successfully challenged a major telecommunications company’s national “most reliable 5G network” advertising before the NAD and the NARB on behalf of a leading telecommunications company, resulting in a claim discontinuance.
- Successfully challenged another major telecommunications company’s national “Best Network” advertising before the NAD and the NARB, resulting in claim discontinuance.
- Successfully defended a major internet provider’s “fastest speed” claim before the NARB—as the advertiser in the proceeding—convincing the appellate body to reverse nearly a decade of precedent in allowing such a claim to include the analysis of upload speeds.
- Advertisers in NAD SWIFT cases have only been successful in defending challenged advertising four times. Manatt attorneys have successfully represented the Advertiser in two of those four cases.
- Successfully defended an advertiser on all non-discontinued advertising claims in NAD’s first Complex proceeding.
- Counsel to Guthy-Renker in a NARB appeal regarding advertising claims made for the Crepe Erase Anti-Aging Body Care Treatment System. The NAD challenged 13 claims that Guthy-Renker was making in its advertising for Crepe Erase. The NAD found that some of the claims were supported, but that others were not supported. Guthy-Renker appealed the decision regarding seven of the claims to the NARB, and Manatt argued the appeal in front of a panel of five NARB members, which held that Guthy-Renker had adequate substantiation for each of the seven claims.
- Counsel to Energizer Holdings in a challenge with the NAD to Procter & Gamble’s claim that Duracell Rechargeable Batteries are “50% longer lasting” on product packaging. Procter & Gamble agreed to modify or discontinue the claim.
- Counsel to Profile Products, a leading producer of soil erosion products, in a challenge with the NAD to a large number of advertising claims made by Terra Novo for EarthGuard, a competing erosion control product. Profile asserted that Terra Novo had made a variety of false and misleading claims that EarthGuard outperforms or is as effective as Profile’s Flexterra. The NAD found that most of the claims were unsubstantiated.
- Representation of Schick in a challenge by Gillette to advertising for the Schick Intuition Plus razor, with the NAD. The NAD found that Schick substantiated its claims that the Intuition Plus provides a moisturizing benefit during shaving and is “the only razor that lathers and moisturizes” during shaving. The NAD also found that the claim that the razor “leaves skin noticeably softer” was supported by consumer use testing.
- On behalf of Energizer, successfully challenged advertising claims by Duracell that its Coppertop battery “lasts just as long in most common household devices” as the Energizer e² Lithium battery and that e² Lithium batteries “waste power.” The NAD found that the study relied upon by Duracell was insufficient to support these claims and recommended that they be discontinued.
- On behalf of General Mills, successfully challenged advertising claims by The Dannon Company for Light & Fit 0% Plus Yogurt. The claims at issue were that the product has “50% more fruit” and contains 12% of the recommended daily value of protein and 10% of the recommended daily value of Vitamin A. The NAD found the claims to be unsubstantiated and recommended that they be modified or discontinued.
