Manatt’s experience representing clients before the National Advertising Division (NAD) and National Advertising Review Board (NARB) has substantial breadth and depth. The firm’s NAD practice has been recognized by legal ranking organizations such as Chambers USA and The Legal 500. Our attorneys have intimate familiarity with the NAD and decades of experience. Over the past several years alone, our attorneys represented clients in dozens of NAD cases, NARB appeals and compliance proceedings, making Manatt attorneys some of the most frequent advocates at the self-regulatory organization.
The NAD is the primary self-regulatory body of the advertising industry, overseeing the truthfulness and accuracy of national advertising campaigns. Participating in an NAD proceeding is voluntary, but there are consequences for advertisers who choose not to participate or choose not to comply with an NAD decision. The NAD refers cases to the Federal Trade Commission (FTC) for review and potential enforcement. The FTC has long provided strong support for self-regulation in the advertising industry and, specifically, for the work of the NAD.
Our NAD practice assists clients in navigating the agency’s procedures, initiating and responding to competitor challenges and responding to the NAD’s monitoring challenges. The Firm’s attorneys also provide advice on prophylactic claim substantiation, including best practices for avoiding NAD scrutiny, defending against NAD and other regulatory challenges, and minimizing legal and regulatory risks in advertising.
In addition to representing clients in NAD proceedings, Manatt’s NAD practice handles appeals from NAD decisions to the NARB and handles advertising challenges before other self-regulatory bodies, such as the Children’s Advertising Review Unit (CARU) and the Electronic Retailing Self-Regulation Program (ERSP). The Firm’s attorneys also have significant experience in representing clients in litigation related to advertising claims, including class action and Lanham Act lawsuits.
Manatt’s NAD practice serves clients across a range of industries, such as retail and consumer products, health care products and claims, telecommunications and financial services. The Firm’s attorneys work closely with clients to understand their business objectives and tailor legal strategy to fit their needs.
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.
Honors and Awards
- Top-ranked in Chambers USA 2022 rankings. “Continues to assist advertising agencies and major brands with regulatory compliance and transactions including talent, sponsorship and agency agreements, as well as offering counsel on privacy concerns. Also provides representation to clients before regulatory bodies, including the NAD.” “Manatt provides guidance on cutting-edge marketing issues.”
- Top Tier, The Legal 500 United States, 2022
- Tier 1 in Advertising Law, Best Law Firms, US News & World Report 2023