When the Chair of NARB accepts a NAD or CARU decision for review, a panel of NARB members is assembled to hear the appeal. Each NARB panel consists of five members -three advertiser members, one agency member and one public member.
Selection of Panel Members
Care is taken to screen out actual or apparent conflicts of interest an NARB Panel Member may have to assure the appointment of an impartial panel. For example, an NARB advertiser member will not be considered should his/her employing company manufacture or sell a product or service sold by the advertiser involved in the proceeding. An NARB advertising agency member is not considered qualified if his/her employing agency represents a client which sells a product or service competitive with that concerned in the proceedings, and if the member is or has been directly involved in that account.
Before a panel hearing, panel members receive the entire “case record,” as well as written briefs of the positions taken by the NAD, the complainant, and the advertiser. Panel hearings are held in New York City and require the better part of a day. Present at these “round table” discussions are representatives of the NAD, the advertiser, complainant, and including, frequently, outside counsel, research and development and marketing people. It is not unusual to have 20-25 attending.
The Panel Hearing
All arguments during the panel hearing are limited to the issues under review as contained in the “case record”; no new evidence is to be considered.
Following the chairperson’s remarks, the NAD usually leads off the presentations by reviewing its findings and giving the rationale of the decision. The advertiser may follow with arguments and analysis of its substantiation of the questioned claims. The challenger will then present the reasoning of its position. Any party that has requested an opportunity to appear and offer testimony shall be accommodated provided the evidence presented had been subject to prior NAD and advertiser review. All parties shall submit to questions by panel members.
After all “testimony” is heard, the parties are excused and the panel, along with the NARB Counsel and the NARB Director, will meet in an executive session and discuss the panel’s verdict. The panel will either uphold, modify or reverse the NAD decision. Although a majority of the panel will rule, panels often achieve a unanimous opinion of the advertising in question.
The Panel Report
The NARB’s General Counsel, will prepare the first draft of the panel’s decision, including a rationale of the panel’s opinion on the evidence presented. This and subsequent drafts are disseminated to all panel members for their review, additions, corrections and general input.
Upon approval of the draft by all panel members, the final panel report is sent to the advertiser, who has ten days to indicate his acceptance or rejection of the decision. The advertiser may also include a statement, should it wish, that becomes part of the panel’s final report.
The panel’s recommendations are non-binding, however, in the spirit of self-regulation, almost all advertisers accept the NARB Panel’s findings and recommendation. In the extremely rare instance of an advertiser’s unwillingness to accept the panel’s recommendations, NAD/NARB Procedures call for a referral of the matter to an appropriate law-enforcement agency.
All proceedings are kept confidential; only the panel report is made public. The panel report is publicly released to the press and subscribers which include ad agencies, corporations, law firms, universities, government offices and other interested parties.