• The National Advertising Division (NAD) of BBB National Programs, Inc. recently launched its new Complex Track challenge process. According to NAD, the Complex Track will be a “customized experience” to “support advertising challenges that involve complex substantiation,” and offers “flexible and more predictable scheduling, greater transparency into the case review process, and deeper insights into NAD’s perspective on the evidence.”
  • Parties to a challenge under the Complex Track will initially meet with NAD (the cases will be staffed by three NAD attorneys – one lead attorney and two supporting attorneys) in a pre-case conference, to “map out the timeline necessary to compile evidence” and jointly discuss the timing of the submissions and meetings. The second case conference, held ex parte with each party after the advertiser’s initial submission but before the record closes, will involve discussions to gain “insight into the evidence received and any questions NAD has about that evidence”; offer the option to provide specific evidence or demonstrate the sufficiency of different evidence; give the parties insight into NAD’s view of the case and for NAD to share feedback; and help the parties prepare for the final case meeting(s). The subsequent post-decision processes are intended to remain the same as those applied in the Standard Track challenge process.
  • NAD envisions the Complex Track for cases that require more time and resources to resolve, such as those involving: multiple expert reports supporting or rebutting evidence; evidence that includes consumer perception surveys, scientific studies, or other technical issues that require additional time to analyze; or challenges to numerous claims made for a variety of products. NAD provides a non-exhaustive list of examples of hypothetical cases that may be appropriate for the Complex Track.
  • As previously discussed on this blog, NAD launched its Fast-Track SWIFT (Single Well-defined Issue Fast Track) challenge process in April 2020, offering an expedited process (resolution within 20 days of initiation) for relatively simple and well-defined single-issue advertising disputes. Challengers will now have three filing options available to pursue their case with NAD: Fast-Track SWIFT, Complex Track, and the Standard (original) Track.  Advertisers can request that a challenge be moved from Standard to Complex Track, subject to NAD’s discretion.

Keller and Heckman advises and represents clients in various stages and types of NAD proceedings. We will continue to monitor this new challenge mechanism as it develops.