National Advertising Division Expands Fast-Track SWIFT Process for 2023

Key Update:

• The National Advertising Division (NAD) updated its Fast-Track SWIFT process (Single Well-defined Issue Fast Track) to accommodate "implied" claims as long as they are clear cut and involve a single issue.
• In 2020, the NAD launched its Fast-Track SWIFT resolution process, promising to resolve single-issue cases within 20 business days (as opposed to approximately three months in a standard NAD case). For an overview of the process, see our blog.

Previously, the SWIFT track was only used for express claims, and NAD frequently rejected SWIFT treatment for challenges to implied claims. The process, however, is now expanded to include "misleading express and implied claims." NAD hopes that by making the change it will reduce the number of disputes over SWIFT jurisdiction that revolve around whether the contested claim is express or implied.

In addition, the NAD will accept misleading price and sales claims, as well as claims about the prominence or sufficiency of disclosures in influencer marketing, native advertising, and incentivized reviews.

The NAD also eliminated the page limit for evidence submitted in support or opposition to a challenge. The NAD determined that the page restriction limited the examination of noncomplex evidence that exceeded the page limit.

The NAD process can provide an effective alternative to litigation for challenging competitor claims. In particular, the expanded SWIFT track is worth consideration when companies seek a speedy and cost-efficient resolution of claims that are single-issue express or implied claims, or involve price and discounts, the prominence or sufficiency of disclosures in influencer marketing, native advertising, or incentivized reviews.