Consumer Surveys in NAD Cases

Foley Hoag will join up with the National Advertising Division of the Council of Better Business Bureaus (NAD), America’s premier self-regulatory and alternative dispute resolution forum for false-advertising matters, to host NAD’s first-ever live conference devoted entirely to the use of consumer perception surveys to determine the messages implied by advertisements challenged in NAD proceedings. The conference will be held next Friday, December 7, at the IAB Ad Lab in New York. As a proud co-host and speaker at the conference, I have had a peek at the slide decks and can give you a teaser on some of the key issues that we’ll discuss.

Consumer surveys are the most important evidence of what marketing claims are implied by an ambiguous advertisement. They are important in private litigation, in NAD proceedings, and before agencies such as the FTC. NAD in particular has a rich body of precedent on surveys as evidence of implied claims. Our main goal in the Consumer Protection Surveys conference is to provide a primer on what makes for a good survey, how to overcome common pitfalls, and how to construct a robust survey critique. But don’t come expecting just to hear someone drone on about the need to have a control group. We have much livelier plans than that!

What to Expect at the Conference

I will be kicking off the conference with a 45-minute discussion of what I’ve learned from reviewing, analyzing, and tabulating every NAD case in the past five years that featured an implied claim interpretation survey. I’ll impart never-before-presented information about who submits surveys, how often NAD accepts or rejects their findings, and the most common fatal flaws NAD finds in them. I might happen to share a few provocative interpretations about NAD’s approach to surveys that will spark some of the discussion in the following panels.

Then comes a panel, moderated by NAD Assistant Director Annie Ugurlayan, of three esteemed experts in the human research and survey field: Joel Steckel of the Stern School of Business at NYU, Daniel Ennis of the Institute for Perception, and Hal Poret of Hal Poret Survey Research and Consulting. (Learn more about our speakers here.) These experts come from different perspectives and will talk about the variety of possible approaches that can result in a valid study that NAD will find helpful in analyzing the challenged advertising claims. You’ll get great guidance on the process of designing a good survey for NAD and also for critiquing a bad one from the other side, spiced with differing viewpoints on issues such as avoiding biased questions, implementing proper controls, and dealing with the new world of online and mobile survey respondents.

We’ll then get the NAD’s eye view with senior NAD attorneys Kat Dunnigan, Martin Zwerling and Hal Hodes, who will tell us what they need to see in a survey that helps them gauge the implied meanings of advertisements they are reviewing. Finally (at least for the substantive program), all of the speakers will return to answer your questions and react to what other panelists have said throughout the day.

After the panels, stick around and buttonhole the panelists one-on-one while enjoying cocktails and light bites courtesy of Foley Hoag. Say hi to me and my colleagues Dave Kluft, Neil Austin and Natasha Reed while we all absorb the lessons of the day.

There’s still room to join our audience, and we expect to award New York CLE credit, so sign up now at NAD’s site if you’ll be in the New York area next Friday. We would love to see you there!

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