ADventures in Law

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We recently had the great good fortune to host a live AD Nauseam <a href="https://www.bakerlaw.com/podcasts/ad-nauseam/" target="_blank" rel="noreferrer noopener">podcast</a> at the 2025 ANA Masters of Advertising Law <a href="https://www.ana.net/content/show/id/ms-baalaw-nov25-agenda" target="_blank" rel="noreferrer noopener">conference</a> with Federal Trade Commission (FTC) Commissioner Melissa Holyoak and National Advertising Division (NAD) Director Phyllis Marcus. We talked with them about FTC and NAD priorities for national advertisers and wanted to share the highlights with our blog followers. We shared key points from our FTC discussion <a href="https://www.adventures-in-law.com/blogs/insights-from-ftc-commissioner-holyoak-at-recent-ana-conference/" target="_blank" rel="noreferrer noopener">here</a> and now share highlights from our NAD discussion. (Be sure to catch our prior AD Nauseum episode where we talked with Marcus shortly after she joined the NAD, available <a href="https://www.bakerlaw.com/insights/ad-nauseam-phyllis/" target="_blank" rel="noreferrer noopener">here</a>.)

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Challenge trends: First, we asked Marcus about trends she is seeing at NAD. She said she is seeing cases on topics that reflect the economic times we are facing, including an uptick in Made in USA cases, likely given tariff issues, and an increase in cases related to pricing and value claims. She also said they are seeing a resurgence in cases filed by drug companies over claims for prescription drugs, as well as an increase in B2B filings including cases involving business formation claims and financial services claims.

Referrals: Marcus noted that NAD is looking for creative ways to increase the incentives for companies to participate in the NAD process and agree to implement NAD’s recommendations. She said they are looking for more entities that might be receptive to referrals, including state attorneys general. She also noted the formal and informal relationships NAD is developing with online platforms.

Marketing to kids and teens: Marcus noted this year that both CARU and NAD brought their first case in 2025, with CARU focused on cosmetic marketing to kids under 13 while NAD focused on marketing to older kids and teenagers and looked at the practice of parents posting videos of their kids. Marcus said the claims at issue focused on whether the products were safe for kids, as the claims promised. She added that NAD assessed these claims from the perspective of the teen audience, a more impressionable, less sophisticated audience than adults.

AI: Marcus was very excited to discuss the new monitoring focus on claims made about AI. She noted NAD has added a staff attorney dedicated to these cases and explained they were being very deliberate about how they are choosing the cases they bring. The first round focused on big tech products and claims NAD believed went beyond what the companies could support – claims where companies were “getting ahead of their skis,” as she called it. The next wave will hit soon and will focus on safety claims related to AI. Marcus said they have the next several rounds mapped out and will continue to closely monitor new products and new claims in real time.

Influencers: Marcus said NAD had many challenger cases this year that in part challenged influencer practices. NAD also is monitoring cases where it believes some guidance would help fill some uncertainty or gaps related to particular influencer practices. She noted that NAD always looks at influencer posts in context to understand whether a majority of the audience would understand the disclosure. They looked at practices such as whether highly stylized photos posted by known influencers would be understood as advertising. They also looked at when disclosures should be made in writing and orally for video content. Marcus said the influencer certification NAD is developing will likely launch in the spring of 2026 with training programs.

Green claims: Marcus noted that there were a number of competitive challenges brought this year involving sustainability claims, including for boxed water, ceramic pans and, most recently, bamboo toilet paper. She said in many of these cases the monadic product claims were supported, but the advertisers went too far and didn’t have the needed support for the more aggressive comparative claims.

Competent and reliable scientific evidence (CRSE) standard: We noted that the FTC’s standard is being challenged in a pending litigation and asked Marcus what NAD would do if the CRSE standard is struck down or substantially modified by a court. Marcus said NAD would do what it and the FTC typically do, which is go back to first principles with the Pfizer factors to analyze the claim made and what support should be required. She also noted that NAD would defer to whatever experts in the relevant field articulated was the appropriate type and level of substantiation.

And what AD Nauseam episode would be complete without personal trivia?! Marcus was born and raised in Bethesda, Maryland, and has three grown daughters. Her career has been in Washington, D.C., at the FTC Bureau of Consumer Protection in the Advertising Practices Division, at a law firm and now running NAD (where she splits her time between the New York and Northern Virginia offices). Her fun fact is that she married a man she knew in middle school, and they just celebrated their 30th anniversary! Marcus told us her favorite ’80s movie is Valley Girl, and her favorite ’80s singer is Peter Gabriel. Her recent streaming guilty pleasure is The Diplomat. Billy Joel at the Nationals Stadium in D.C. was her favorite concert; the one she most regrets not seeing was Taylor Swift’s Eras Tour.

Insights from NAD Director Marcus at Recent ANA Conference