As anyone who has been through a case at the National Advertising Division (“NAD”) can tell you, bragging’s not allowed. One of the cardinal rules in self-regulation is that you cannot use an NAD decision for advertising purposes. What if you just send the decision around to, say, customers of the competitor you challenged? You didn’t actually say anything promotional.
Nope. Won’t work. You can’t send the decision around as if it’s the hot news off the presses. You can’t even send the press release around without a significant degree of risk. Risk of what? Of an embarrassing press release calling you out as a violator of NAD procedures.
Last year, GP Plastics Corp., the maker of PolyGreen plastic bags, made some “green” claims. It was challenged by Mexico Plastic Company, doing business as Continental Products. The NAD eventually recommended that GP Plastics stop making the “green” claims because consumers were likely to misinterpret the claims and take away an unsupported message. GP even started to appeal the decision, but in the end, agreed to change its ads.
All fine. Except Continental Products, the challenger in the case, (and NAD specifies that it was Continental Products’ lawyer who was actively involved), disseminated the decision to third parties, including customers of GP Plastics. To make matters worse, the dissemination happened before NAD even released the decision to the public. NAD announced that Continental Products was in violation of NAD procedures and chastised it, saying, “The self-regulatory process requires fair dealing on the part of both parties; the NAD procedures and participation agreement both note that parties are prohibited from using NAD decisions for promotional purposes.”
Why This Matters
Self-regulation works because industry believes in it. It can lose its integrity if it becomes a tool for promotion by one party against another. Therefore, NAD has to take a strong position against promotional use of decisions. If you want to get your victory in front of the right people, the right way to do it is to tell Linda Bean at the National Advertising Review Council to send the official NAD press release to the news organization you wish to know about your victory. She will send it along with access to, or a copy of, the decision. You get pretty much the same bang without the kick in the pants.