FTC Enforcement Priorities and NAD Updates: Takeaways from the National Advertising Division 2026 Annual Conference

Last week during the National Advertising Division 2026 Annual Conference, the Federal Trade Commission (FTC) provided insights on its enforcement priorities, and the National Advertising Division (NAD) provided updates on recent cases and procedural updates. 

FTC Enforcement Priorities 

The FTC’s Bureau of Consumer Protection Director Chris Mufarrige was unable to attend, but in his place, Katherine White, Principal Deputy Director of the Bureau of Consumer Protection, provided prepared remarks during the FTC Update panel.  

Deputy Director White reiterated the FTC’s focus on protecting consumers from fraud. Specifically: 

• Government and business impersonation: The FTC appears poised to focus on and even strengthen its enforcement against impersonation, through its existing Rule on Impersonation of Government and Business and Advance Notice of Proposed Rulemaking (ANPR) to update that same rule to better address the amplification of impersonation through online platforms. Impersonation of government appears to be the focus, particularly when targeting vulnerable populations like older Americans or people looking for healthcare.  
• Online platforms that enable or enhance fraud: Priorities appear to be payment processors, social media, and advertising optimization platforms. Deputy Director White repeatedly iterated the incentives of platforms to maximize clicks and engagement without internalizing the costs—stating that consumer deception is an externality that needs addressed. Though the FTC would likely have to show that the platforms knew or should have known they were enabling fraud, the platforms are the cheapest-cost-avoiders. The ANPR above could address this, such as by prohibiting impersonation, requiring platforms to take affirmative steps to address impersonation (like the Take It Down Act), requiring recordkeeping procedures, or even providing a safe harbor.  

 NAD Recent Cases 

During a panel entitled NAD: Year in Review, NAD attorneys provided an overview of trends and recurring issues from NAD decisions over the past year. 

• Household products and expenses: There were many cases regarding pet products (the quality level of pet food, #1 claims, and absolute claims), and groceries (price comparison claims). 
• Health and safety claims: Recent issues included accuracy and superiority in performance claims, credence benefits, and establishment claims, as well as that compliance with an industry regulator does not mean the ad is not deceptive. 
• Numeric claims and methodology: Highlights included how numbers and ratios are calculated (e.g., the appropriateness of an odds ratio calculation), the sufficiency of the sample in surveys, and #1 claims. 
• Puffery: Attorneys discussed how some attributes like “best smell” can be measured, and how the context can turn a claim from puffery into a measurable claim (e.g., when it is tied to a competitor or a specific product attribute).  
• New industries: New industries included IVF, cannabis, retirement plans, hearing aids, and generative artificial intelligence (AI).  

NAD Procedural Updates 

 NAD attorneys Phyllis Hurwitz Marcus (Vice President), Katherine Armstrong (Deputy Director), and Annie Ugurlayan (Assistant Director) participated in a panel entitled “NAD Procedural Updates: What Practitioners Need To Know.”   

• Procedural updates: AI is not permitted to record NAD meetings or calls. Notice of appeal of a SWIFT case is required within 3 business days (instead of 5). There will be more updates that will become live on January 1st, including clarifying that scheduling meetings for complex track cases can be in-person.  
• Proper track assessment: SWIFT track cases continue to only be for a single, well-defined issue. A case will be moved to the complex track when there are many claims, the evidence is complex, and/or the challenge involves two or more products. Additionally, the NAD decision will indicate that it was a complex track decision (like how it is indicated for SWIFT track decisions).  
• New referral pathways: NAD built out its relationship with the National Association of Attorneys General (NAAG) to strengthen State Attorneys General referrals (in addition to the FTC and other potential enforcers like the FDA). NAD also built out its relationship with online platforms by opening up a reporting channel with TikTok.  
• Compliance Working Group: NAD created a Compliance Working Group to work through issues surrounding compliance proceedings, including implied claims, additional evidence and potentially re-opening cases, claims that were voluntarily discontinued, and whether an advertiser’s response to a compliance challenge should be shared with the challenger.  
• Mediation privilege: As a topic of discussion in last year’s conference, Phyllis Marcus and Laura Brett (former Vice President of NAD) co-authored an ABA article (ABA subscription required) on extending mediation privilege to NAD proceedings.  

The conference also featured a variety of different panels, including on influencers, NYC Department of Consumer and Worker Protection enforcement, claim substantiation, NAD disputes compared to courts, AI, health claims, pricing claims, and environmental claims. Crowell & Moring attorneys attended these sessions, for which they already have substantial knowledge and expertise, and are happy to advise or provide a recap on these topics and sessions. 

With regulatory priorities rapidly evolving around impersonation, online platform responsibility, affordability claims, and health claims, it is critical for clients to continuously assess advertising practices and compliance strategies to stay ahead of enforcement trends. Crowell & Moring’s team stands ready to help navigate these changing priorities and invites you to reach out for tailored guidance or a thorough overview of these topics.