Yesterday, NAD published the first batch of decisions in challenges brought under its new SWIFT fast-track process (for more about SWIFT, check out our previous posts here and here). In the accompanying press release, NAD confirmed that its goal of releasing decisions within 20 days from initiation of a SWIFT case was successfully met. In doing so, NAD also announced that the first three cases (each initiated in May) were resolved – two resulting in decisions, and one ending in administrative closure.
The first was a case brought by AT&T over Spectrum Mobile’s “5G” mobile service claim. AT&T argued that the claim should be discontinued because a disclaimer could not cure the unqualified claim when the service was more unavailable than available, and because the context of the commercial communicated widespread coverage. Notably, Spectrum filed an objection to the SWIFT process, arguing that “the challenged ‘widespread 5G’ claim is an implied claim which does not fit in any of the limited categories that NAD has designated as appropriate for SWIFT challenges.” While NAD agreed that implied claims are not currently being reviewed in the SWIFT process, NAD noted that the 5G claim is presented as an express clam throughout Spectrum’s television and radio commercials, and website, and determined that the claim and the sufficiency of any disclosures “falls within the SWIFT category of express claims that do not require review of complex evidence or substantiation.” However, the advertiser ultimately declined to participate and NAD referred the matter to the appropriate regulatory authorities.
The second was a case brought by Church & Dwight over Pharmavite’s “clinically proven absorption” claims for some of its vitamin products. In response, the advertiser represented that it would clearly and conspicuously disclose which nutrients were clinically tested, and NAD noted that the claim had already been modified on the advertiser’s site prior to the filing of the challenge. Because the claims were voluntarily modified, the decision was released without additional substantive analysis.
As mentioned above, the third case (surrounding infant care products) was administratively closed upon consent of the parties and no further information about it was published by NAD.
Charter Communications d/b/a Spectrum Mobile (Spectrum Mobile 5G Mobile Service), Report #6666, NAD/CARU Case Reports (May 2020).
Pharmavite LLC (Nature Made Multi Complete, Prenatal Multi + DHA Softgels, and Prenatal Gummies with 58mg DHA), Report #6702, NAD/CARU Case Reports (May 2020)