Truth in advertising: NALC webinar to discuss alternative enforcement methods

By Tru Joi Curtis
National Agricultural Law Center
U of A System Division of Agriculture

FAYETTEVILLE, Ark. — Claims about misleading food advertising are typically made to federal agencies, the courts, or the manufacturer, but there is another avenue – the National Advertising Division of the Better Business Bureau, a nonprofit organization that provides information and ratings on businesses and charities.

Kim Bousquet and Alli Condra of Davis Wright Tremaine LLP will present the National Ag Law Center webinar on August 16, 2023, highlighting corporate use of the National Advertising Division as an alternative enforcement method.

In the United States, the Food and Drug Administration and the United States Department of Agriculture have primary responsibility for regulating packaging and point-of-purchase advertising for food sold in retail establishments. Food labeling laws and regulations also cover the claims made through product marketing. If false or misleading claims are made, complaints may be made to entities within the government or to organizations that provide self-policing for food and agriculture companies.

“Companies can use the National Advertising Division process by filing challenges to advertisements on NAD’s online portal and paying the fee,” Counsel Kim Bousquet of Davis Wright Tremaine LLP. “NAD offers a fast-track option for single, well-defined issues, a standard track option for typical challenges, and a complex track for challenges that require complex claim substantiation.”

The Better Business Bureau says NAD is an industry-led system designed to build consumer trust in advertising and support fair competition in the marketplace.

According to Bousquet, NAD provides companies with an alternative means of challenging false and misleading advertising statements made by competitors. Food and agriculture companies regularly use NAD’s process for challenges.

“NAD is an important industry-led complaint process for truth-in advertising claims,” Bousquet said. “Understanding the NAD process is beneficial to food and ag companies when determining whether — and how — they want to address false or misleading advertising claims.”

Generally, the process involves NAD’s consideration of the challenger’s materials and those provided by the advertiser, meetings with the parties, and issuing a decision. No matter which track a company chooses, NAD decisions are often much faster than challenging a decision in court or raising an issue with an agency, said Bousquet.

“While it’s true that NAD’s decisions are not binding, NAD challenges often lead to the advertiser making modifications or discontinuing advertisements,” Bousquet said. “And, if the advertiser refuses to participate or modify an advertisement, NAD is likely to refer the case for further investigation by the relevant government agency, often the Federal Trade Commission or FDA. In addition, NAD case decision summaries are made public, which can also incentivize companies to modify advertisements.”

Alli Condra and Kim Bousquet of Davis Wright Tremaine LLP will present the National Ag Law Center webinar on August 16, 2023, highlighting corporate use of the National Advertising Division as an alternative enforcement method.

Bousquet and Alli Condra, an associate at Davis Wright Tremaine LLP, will be discussing several high-profile examples of how food and agriculture companies use NAD, as well as various components of the organization. They’ll place this in context through an overview of federal food requirements during the NALC’s upcoming webinar, “How Food and Ag Companies Can (and Do) Use the National Advertising Division to Combat Unfair Competition and Test the Waters of Emerging Issues.” The webinar will be held on Wednesday, Aug. 16, at 11 a.m. Central/noon Eastern.

“Understanding NAD and the role the organization plays in ensuring truth in advertising helps to provide consumer confidence in products and create a fair marketplace,” Bousquet said. “Alli and I look forward to sharing our knowledge and this important information in the webinar.”

The webinar is free of charge and registration is online.

“We’re looking forward to this webinar and all of the beneficial information that Kim and Alli will provide,” NALC Director Harrison Pittman said. “Federal food labeling laws are incredibly complex, and learning more about potential mechanisms that ensure truth in labeling will be beneficial to consumers and companies alike.”

For information about the National Agricultural Law Center, visit nationalaglawcenter.org or follow @Nataglaw on Twitter. The National Agricultural Law Center is also on Facebook and LinkedIn.

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