United States: Claim Construction Surveys At The National Advertising Division: A Quantitative Analysis

Last Updated: December 28 2018
Article by August T. Horvath

This post describes a quantitative analysis of the use of consumer perception surveys to interpret implied advertising claims in the past five years of cases before the National Advertising Division of the Council of Better Business Bureaus (NAD), which I presented at the NAD Survey Conference in New York on December 7.

How Many Surveys Does NAD Receive – and Accept?

NAD is America's leading industry self-regulatory forum for resolving competitor disputes over false advertising. As I noted in my post on the past year's NAD cases, NAD adjudicates about 90 cases per year, most of them brought by national brands accusing their competitors of false or unsubstantiated advertising claims. Many of the challenged marketing claims are not literally stated in the advertisements, but allegedly are implied. Either party to a NAD proceeding may introduce survey evidence that the alleged claim either is or is not implied by the contested advertising.

At the NAD Survey Conference I reviewed the 52 surveys submitted in 36 NAD cases (out of a total of 480 reported cases) in the past five years. I first wanted to know how often NAD accepts these surveys as valid, versus how often it finds too many methodological flaws for the survey to be useful. As you can see in the table above, I found that NAD is about twice as likely to reject a survey outright as it is to accept the survey as evidence of the existence of an implied claim. This isn't surprising to experienced NAD practitioners, but it is still remarkable. The experts who conduct surveys for NAD participants are experienced, highly regarded professionals. It isn't clear whether these experts are doing uncharacteristically bad survey work in NAD cases, or whether NAD is an especially tough – or idiosyncratic – grader of surveys.

Do Surveys Affect NAD's Decision?

I next wanted to find out whether surveys seem to affect how NAD decides on the issue of whether the challenged claim really is implied by the advertising. Because most surveys evaluated by NAD are rejected, I also was interested in the relationship between NAD's evaluation of surveys and whether NAD nonetheless agreed with their conclusions.

When I coded the cases and ran the numbers, I found out that when NAD rejects a survey as invalid, it is still about equally likely to agree with the survey as to disagree, based on its independent review of the advertising. On the other hand, in cases where NAD accepts a survey as valid, it almost always agrees with the survey's conclusion about the implied claim.

So there is a correlation at NAD between accepting a survey as evidence and agreeing with its conclusion, but what does this mean? Is a valid survey so powerfully convincing to NAD that NAD hardly ever disagrees with its conclusion, or is NAD more likely to accept a survey when NAD has already made up its mind, adding additional support to a conclusion it would have reached anyway? To get some insight into this question, I had to switch from quantitative analysis to a close reading of the cases, to see if NAD spells out its thought process.

What I learned did not furnish much evidence that surveys change NAD's mind about implied advertising claims. In 9 of the 14 cases where NAD accepted a survey and also agreed with its conclusion about the implied claim, NAD wrote something to the effect that it conducted an independent analysis of the advertising anyway, and the survey merely supported its own judgment. Sometimes, when the survey faced strong criticism from the opposing party, NAD averred that even if it were to discard the survey as fatally flawed, it would still reach the same conclusion about the advertising. The other five cases were ambiguous. There was no case where NAD wrote, for example, that while it initially disagreed with the survey's conclusion about implied claims, the survey changed its mind; or even that NAD was initially uncertain whether there was an implied claim, but a survey submitted by one of the parties pushed it over the line. Of course, these things could have happened, and NAD just might not have mentioned it. At the end of my presentation, I urged NAD to give surveys due credit if they are ever a decisive factor in NAD's decision, just so the parties know when they are worth the investment. I didn't exactly get a reply, so I'll be reading future NAD decisions closely to see if they acknowledge the importance of a survey in reaching a decision.

Implications for NAD Case Participants

The ultimate goal of my analysis, and of the whole conference, was to provide some guidance for parties to NAD proceedings about whether and how to submit surveys in NAD cases. Various panelists covered this topic from many angles, and the takeaways from my presentation aren't the complete answer. I did offer two principles.

First, if you submit a survey to NAD, make it a good one, and keep as closely as possible to the style of survey NAD prefers, to boost your survey's low odds of being accepted.

Second, integrate your survey with your legal and rhetorical argument, because surveys may do better at NAD when they coincide with NAD's own judgment. Don't expect a survey to turn NAD around when your theory of an implied claim is very counterintuitive and unlikely to be accepted in the absence of a survey. A survey is only part of what NAD looks at in evaluating whether an implied claim is made, and a survey is unlikely to carry that burden on its own.

Thanks to NAD and the participants for an informative and entertaining conference on December 7. I look forward to future NAD events that drill down into key issues like this that occur regularly in NAD cases.

This has been the first installment of an occasional series on this blog, "What I Said At ..." In this series, our blog authors will discuss highlights of recent talks we have given at conferences and other events.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Ostrow Reisin Berk & Abrams
Fox Rothschild LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Ostrow Reisin Berk & Abrams
Fox Rothschild LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions