ADventures in Law

Home | ADventures in Law

NAD has amended its <a href="https://bbbprograms.org/programs/all-programs/national-advertising-division/challenge-process" target="_blank" rel="noreferrer noopener">SWIFT track processes and procedures</a> multiple times since its inception in an effort to make sure the process is fair yet efficient. While it met with some nontrivial resistance from industry at its inception, it has become incredibly popular, with about a quarter to a third of NAD’s docket now consisting of these single-issue cases where a challenger can get a decision in a month’s time. One of the tweaks NAD added was two different SWIFT track options – a regular SWIFT track for single-issue facial advertising cases and a second lower-cost option for cases where the sufficiency of a disclosure is contested. We have not seen a lot of these latter cases despite the modest price tag – an $11,200 filing fee for 2025. Our working theory was that for most advertisers, the juice was just not worth the squeeze to bring such a case. But that may be changing. We were fascinated to read the recent decision in <a href="https://bbbprograms.org/media-center/dd/kreyol-essence" target="_blank" rel="noreferrer noopener">a case brought by Mielle Organics</a> against Kreyol Essence over failures of a single beauty influencer to include material connection disclosures.

core/paragraph

Now Mielle is owned by P&amp;G, no stranger to NAD and its strategic benefits for advertisers. The short version of the case is that Kreyol dealt with its allegedly rogue influencer and edited or took down her posts voluntarily during the pendency of the SWIFT action. But the timing as reported in the decision is what had us saying “Wow.” The decision reports that Mielle sent a takedown email to Kreyol on October 16 alleging there were 22 influencer posts lacking a material connection disclosure such as #ad. Kreyol responded a day later and said it was doing an investigation and asking the influencer to fix her posts. By the next day, October 18, Mielle acknowledged that some of the posts had been removed but gave Kreyol until 3 p.m. that day to handle the rest, threatening NAD action if they did not. And indeed, Mielle filed at NAD on October 18! NAD opened the action on October 23. In the meantime, Kreyol had been in contact with its influencer on October 20 regarding the remaining posts. After receiving the challenge, Kreyol assured NAD that the changes had been made. NAD went ahead with the action since the posts at issue were up on October 18, the day the challenge was initiated. It noted Kreyol had dealt with all the posts voluntarily in its decision.

It seems Kreyol was taking the allegations from Mielle quite seriously and moving forward with all deliberate speed. It almost begs the question of why Mielle didn’t give its competitor another couple of days to deal with the influencer before pulling the trigger. Or alternatively, why Mielle didn’t just go directly to NAD if it felt it needed action so quickly. Of course, with influencer posts, a brand will need some time to work with the influencer, as they do not have a direct ability to take down a post that is not on a brand-owned page. But typically, if competitors do decide to engage in cease-and-desist communications, it is both to see if change can be exacted quickly and painlessly with the exchange of a few emails and to set up a professionally courteous course of dealing. But regardless, such bold action as we see here certainly commands respect. And given the relatively little investment in time to draft a disclosure complaint and the relatively low filing fee, perhaps being taken seriously to set the tone for future dealings was the intended outcome all along.

NAD’s SWIFT Disclosure Track Commands Respect at a Bargain