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Stay ADvised: Net Impression Matters—NAD, FTC, AGs, and NARB Turn Up the Heat

Brand Protection & Advertising Law News
06.01.26
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In This Issue:

NARB Affirms NAD's Tru Niagen Decision, Reinforcing Scrutiny of Health Claims

In April, we covered the National Advertising Division's (NAD) decision involving Tru Niagen, a nicotinamide riboside dietary supplement marketed to support nicotinamide adenine dinucleotide in oxidized form (NAD+) levels. The National Advertising Review Board (NARB) has now affirmed NAD's core recommendations, reinforcing that supplement advertisers cannot rely on "cellular," "structure/function," or mechanistic framing to avoid substantiating the broader health-benefit messages reasonably conveyed by the advertising.

The challenged claims covered a wide range of health and performance messages, including heart health, brain health, immune health, muscle recovery, energy, metabolism, anti-aging, cellular repair, and time-to-improvement claims. NAD's central concern was that Tru Niagen's evidence showed, at most, that nicotinamide riboside (NR) could increase NAD+ under certain study conditions—but did not show that those increases translated into the consumer-relevant health benefits conveyed by the advertising.

NAD had also found that many claims were elevated by context. Claims such as "supports cellular energy that your heart cells need," "helps support energy production in brain cells," and "maintains efficient immune cell metabolism" appeared alongside organ-level framing, clinical proof language, scientific references, and testimonials describing noticeable improvements in vitality and aging. NAD concluded that, in context, these claims could convey functional heart, brain, immune, energy, or anti-aging benefits—not merely intracellular support.

NARB agreed that NAD applied the proper substantiation standard. In particular, NARB rejected the argument that the Dietary Supplement Heath and Education Act of 1994 (DSHEA) "structure/function" framing controlled the analysis. Instead, NARB agreed that the level of support depends on the message reasonably conveyed to consumers and that randomized, controlled human clinical studies are generally the appropriate form of substantiation for most health-benefit claims.

That point mattered because Tru Niagen relied heavily on mechanistic and biomarker evidence, including evidence regarding NAD+ biology, NR metabolism, and the role of NAD+ in cellular processes. NAD found that this evidence may help explain biological plausibility, but it did not bridge the gap between increasing NAD+ levels and the broader health outcomes communicated by the advertising.

NAD also scrutinized the fit between the studies and the claims. For example, NAD had found that some studies involved restrictive dietary protocols, small sample sizes, specialized or clinical populations, single-dose designs, open-label protocols, or endpoints that did not match the advertised benefit. For broad "clinically proven" claims directed to the general population, NAD found those limitations significant. NARB agreed and recommended that Niagen discontinue its "clinically proven" establishment claims, as well as specific health-benefit claims, including those related to heart, brain, and immune health.

Importantly, NAD had not rejected all NAD+ claims. NAD found support for the narrower claim that Tru Niagen begins elevating NAD+ levels within hours of a first dose because the Trammell and Nanga studies provided evidence that a single dose of NR can acutely raise NAD+ levels. But NAD recommended discontinuing the broader compound claim because the statement also asserted "significant increases" within two weeks of daily supplementation, which NAD found was not supported under ordinary conditions of use. NARB agreed, finding that NAD applied the appropriate legal standard in light of the net impression communicated by the challenged claims and recommended that Niagen discontinue anti-aging claims and consumer testimonials that communicate perceptible, real-world improvements, as well as muscle health and energy-related claims that promise functional recovery or vitality benefits.

Niagen stated that it was "deeply disappointed" with the NARB Panel's decision "but will nevertheless comply" with NARB's recommendations.

Takeaways for Advertisers

  • "Cellular" language is not a safe harbor. A claim framed as cellular support can still convey a broader message if the surrounding advertising points consumers toward organ, muscle, or physiological outcomes.
  • Mechanism and biomarker evidence may not be enough. NAD and NARB were not persuaded that evidence of NAD+ biology, NR metabolism, or increased NAD+ levels substantiated broader functional health-benefit messages.
  • "Clinically proven" claims remain high-stakes. Broad, unqualified clinical-proof language is vulnerable where studies vary in population, design, dosing, duration, or conditions of use. Establishment claims require support that is narrowly tailored to the underlying study.
  • Some narrower claims survived. Claims that weren't appealed are worth remembering. NAD found support for the limited claim that Tru Niagen begins elevating NAD+ levels within hours of a first dose because the Trammell and Nanga studies showed that a single dose of NR can acutely raise NAD+ levels. But combining that supported message with an unsupported "significant increases within 2 weeks" message undermined the full compound claim.

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State AGs Weigh In on FTC's Food Delivery Fee Rulemaking

In April, we wrote about the Federal Trade Commission's (FTC) Advance Notice of Proposed Rulemaking (ANPRM) on unfair or deceptive fee practices in online food and grocery delivery services. The ANPRM asks whether additional rules are needed to address how delivery platforms disclose fees, total price, in-app markups, variable charges, and pricing practices that may differ across consumers.

State AGs have now weighed in. In a May 18 comment letter, 16 state AGs urged the FTC to address several pricing practices in the online food delivery industry:

  • Drip pricing and fee stacking. Consumers may see delivery fees, service fees, small order fees, and "regulatory response" fees only after spending time building an order, and often without enough information to understand the total cost or calculation method.
  • Unclear fee purpose and allocation. The AGs questioned whether consumers can tell what each fee covers or whether the money goes to the platform, restaurant, or delivery worker.
  • Comparison-shopping barriers. Because the full price may not appear until checkout, consumers may have to repeat the ordering process across platforms to compare costs.
  • Platform markups and price differentials. Menu or grocery prices may be higher than in-store or restaurant-direct prices, without clear explanation of who set the price or why it differs.
  • Dynamic and personalized pricing. Price experiments, real-time pricing changes, and personalized or "surveillance" pricing, where companies use consumers' personal data to make individualized pricing decisions, pose risks to consumers. "Rapid advances in artificial intelligence capabilities and the accumulation of consumer data available to commercial entities" may cause consumers to see different prices or promotions based on factors they cannot detect or evaluate.

The AGs also proposed several rulemaking ideas. Among other things, they urged the FTC to consider rules that would require online food delivery platforms to:

  • Display the total order price, including all fees and charges, throughout the item-selection process.
  • Describe each fee's purpose, calculation method, and allocation among the platform, restaurant, or delivery worker.
  • Disclose any markup or variation from in-store pricing and separately itemize the total price difference.
  • Require personalized-pricing disclosures, including when consumer data is used to set individualized prices, when a specific price has been personalized, and how that price differs from a fixed reference price, such as the in-store or general-public price.
  • Treat personalized discounts and promotions as personalized pricing when they are based on consumer data, including in loyalty or rewards programs.
  • Disclose the categories of consumer data used to personalize prices, and, where platform prices differ from in-store or public prices, explain the factors driving the difference to the extent possible.

Key Takeaways

Pricing is front and center not just for consumers but for federal and state regulatory bodies. The AG comment letter signals that state enforcers view food delivery pricing as broader than a hidden-fee issue. Their concerns extend to whether consumers can understand the full cost of an order, compare prices across platforms and direct ordering channels, and detect when prices or promotions have been personalized. This dovetails with the uptick in state laws impacting personalized pricing, electronic shelf tags, and related promotional practices, such as Maryland's new law, which we wrote about here.

Companies operating food, grocery, or restaurant delivery platforms—and brands that sell through them—can manage risk by reviewing how they present fees, markups, "free delivery" offers, small-order charges, regulatory response fees, tips, loyalty discounts, and personalized promotions to ensure that disclosures are sufficient throughout the customer experience. The comment period closed on May 18 with the FTC receiving more than 400 comments to consider in the rulemaking process.

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Washington AG Targets Homeaglow's Discount Cleaning Offers and Review Practices

The Washington Attorney General has reached a $2.25 million settlement with Homeaglow, Inc., the operator of the Dazzling Cleaning platform, over allegations that the company misled consumers about discounted home-cleaning offers, recurring membership charges, cancellation terms, refund rights, and consumer reviews.

The case centered on Homeaglow's marketing of low-cost introductory cleaning offers. According to the state, consumers were drawn in by offers such as a three-hour cleaning for $19, but the purchase flow allegedly did not make clear that accepting the offer also enrolled consumers in a recurring ForeverClean membership. The membership carried a monthly fee, and the state alleged that consumers still had to pay separately for future cleanings and related transaction fees.

Homeaglow Service Subscription 

Washington also challenged Homeaglow's cancellation and refund messaging. The state alleged that consumers were told they could cancel at any time or obtain refunds, while material limitations—including potential early termination fees—were not clearly disclosed before purchase. The state further alleged that some disclosures were too difficult to find or understand, including terms presented in fine print or through less prominent mechanisms in the signup flow.

Injunctive Relief

The consent decree requires Homeaglow to make clearer disclosures throughout the advertising and enrollment flow. For introductory offers that enroll consumers in a recurring membership, Homeaglow must disclose the membership obligation, recurring charges, and higher prices for future services in the same ad or communication. Before collecting billing information, it must disclose all material negative option terms, including recurring charges, cancellation deadlines, early termination fees, and the fact that membership fees do not pay for future cleanings. The order also prohibits obscuring material terms, using unsupported urgency tactics, or relying on post-purchase disclosures to cure missing precheckout terms. Homeaglow must obtain express informed consent tied to the membership, use call-to-action language that references the membership, and provide a cancellation mechanism that is at least as easy to use as the enrollment method, easy to find and available at all times, effective immediately.

The order also addresses consumer reviews: Homeaglow may not misrepresent reviews, ratings, or whether displayed reviews reflect the full range of consumer feedback, and if it publishes reviews on its own sites, it must not publish "artificial" reviews and comply with the FTC Consumer Review Rule and Endorsement Guides. The FTC noted that "Homeaglow advertised a 5-star rating based on 6,406 reviews from TrustPilot, a third-party review website," although Homeaglow has a 1.3-star rating on TrustPilot. TrustPilot "removed 4,000 apparently fake reviews from their platform."

Key Takeaways

Enforcement around subscriptions, negative options, and continuous-service offerings is highly active right now, through the FTC Act, state UDAP laws, and the growing patchwork of state automatic renewal laws. Notably, the Washington AG pursued this action under Washington's Consumer Protection Act, which serves as a reminder that, while automatic renewal laws have proliferated, state attorneys general have authority to pursue these cases under related (and broader) UDAP laws.

Companies using "free-to-pay" trials, introductory offers, memberships, subscriptions, or any other continuous-service model may want to review their disclosures, consent flows, renewal notices, cancellation practices, refund claims, and complaint-handling processes for compliance. Also, consumer complaints can be an early warning system: Reviewing complaints received directly by the company—and, where appropriate, filing public records or FOIA requests to understand what consumers may have reported to regulators—can help inform risk analysis and allow companies to address issues before they become enforcement targets.

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NAD Schools Advertiser on Literally Truthful but Misleading Magnesium Claims

Sometimes, a claim that is literally true can still be misleading.

That was the lesson in a recent challenge between competing nutritional supplement companies brought before the National Advertising Division (NAD). Pharmavite LLC challenged claims by Nature's Truth LLC for its Magnesium Glycinate Gummies, including front-label and social media claims that the product provided "200 mg per serving" or "200 mg magnesium per serving."

Magnesium glycinate is a compound form of magnesium that may be more easily absorbed and better tolerated than some other forms of magnesium. But the amount of magnesium glycinate in a product is not the same as the amount of elemental magnesium—the actual magnesium supplied by the product. Nature's Truth's front label stated "Magnesium Glycinate Gummies 200 mg Per Serving," while the Supplement Facts panel on the back label disclosed that the product contained only 22 mg of magnesium, or 5% of the Daily Value.

Pharmavite argued that consumers would reasonably understand the front-label "200 mg" claim to mean that each serving provided 200 mg of magnesium, when in fact the product provided only 22 mg of elemental magnesium. Pharmavite also pointed to industry practice, arguing that supplement marketers typically identify the amount of elemental magnesium on the front label or omit a numeric amount altogether. Nature's Truth responded that the front label accurately referred to magnesium glycinate and that consumers could consult the Supplement Facts panel for the elemental magnesium amount.

NAD agreed with Pharmavite. As an initial matter, NAD found that Nature's Truth social media ads stating that the product contained "200 mg of Magnesium per serving" without referring to magnesium glycinate were unsupported because the product did not contain 200 mg of elemental magnesium. NAD also found that although the front-label "200 mg magnesium glycinate" claim was literally true, it could still reasonably convey the misleading message that consumers would receive 200 mg of magnesium per serving. NAD rejected the argument that the back-label Supplement Facts panel cured the issue, noting that consumers may not check the back label when the front label already appears to state the amount of magnesium in the product—and that social media ads did not include the Supplement Facts panel at all.

NAD recommended that Nature's Truth discontinue claims that the product provides "200 mg magnesium per serving" and modify claims such as "200 mg per serving" and "Magnesium Glycinate Gummies 200 mg per serving" to avoid conveying that the product provides 200 mg of elemental magnesium, a material amount of magnesium, or more than 22 mg of magnesium per serving. NAD noted that the advertiser could still tell consumers that the product is in glycinate form, so long as it does not imply that the product contains 200 mg of elemental magnesium.

Key Takeaways

This decision is a useful reminder that NAD evaluates advertising based on the net impression reasonably conveyed to consumers, not just whether each word in ad copy is technically accurate. It also aligns with a broader trend we are seeing: Plaintiffs' lawyers are increasingly scrutinizing front-panel dietary supplement claims for alleged mismatches between the consumer expectation created on the front label and the information disclosed in the Supplement Facts panel. One common issue is a front-panel claim stating the total milligrams "per serving," while the back panel discloses that a serving consists of more than one tablet, gummy, capsule, or other unit. When reviewing labels, product pages, social media posts, or other ad copy, impacted stakeholders should look carefully for any incongruence between the front-panel message and the Supplement Facts panel that could be characterized as misleading.

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Ninth Circuit: Lanham Act "First to Market" Misrepresentation Not Actionable

Does a company have a legally actionable false advertising claim under the Lanham Act when a competitor falsely claims to be the first to market with a product? According to a divided Ninth Circuit panel, the answer is no—at least where the alleged misrepresentation concerns who first introduced the product concept, rather than a tangible characteristic of the product itself.

The case involved competing manufacturers of biodegradable coolers. Vericool began selling "Ohana" biodegradable coolers in 2016 before Igloo launched its competing "Recool" cooler in 2019. Igloo advertised Recool as "the world's first eco sensitive cooler, made from 100% biodegradable materials." Vericool sued, alleging that Igloo's "first" claim was false and deprived Vericool of the reputational benefit and market attention associated with being the "first mover" and category pioneer.

The district court granted summary judgment for Igloo, and the Ninth Circuit affirmed. The court held that the Lanham Act does not create a cause of action for statements that misrepresent which company was first to market with a product. In the court's view, the Lanham Act reaches misrepresentations about the "nature, characteristics, qualities, or geographic origin" of goods, but those terms refer to characteristics of the tangible product itself—not the origin of the idea, design, or innovation embodied in the product.

Being First Is Not a Product Quality Under the Lanham Act

Applying that framework, the court reasoned on appeal that Igloo's "first" claim was not a claim about an observable quality of the cooler. A consumer could not determine whether a cooler was first to market by inspecting or using the product; that claim depends on external market history. The court therefore characterized Vericool's theory as one about the origin of the product idea, not the product's tangible characteristics.

The court also emphasized the boundary between false advertising law and patent law. In the panel's view, Vericool's claim sought to capture the economic value of being first with an innovative product—an interest protected, if at all, through patent law rather than the Lanham Act. Because Vericool's patent efforts had not yielded the protection it sought, the court rejected what it viewed as an attempted end run around the limits of patent law.

Vericool argued on appeal that Igloo's "first" claim also could have caused consumers to doubt whether Vericool's cooler was truly biodegradable. The panel acknowledged that such a theory might involve a tangible product characteristic and therefore could be cognizable under the Lanham Act. But the court held that Vericool had waived that argument by failing to raise it below or develop evidence that consumers were confused about whether Vericool's cooler was biodegradable.

Judge Bumatay dissented. In his view, the majority read the Lanham Act too narrowly. The dissent argued that a product's status as "first of its kind" can be a material characteristic or quality, even if it is not physically observable, and that the case should have been remanded for further consideration of Vericool's false advertising claim.

Key Takeaways

The decision narrows the path for Lanham Act claims based on "first," "original," "innovative," or similar pioneering claims, at least in the Ninth Circuit. The ruling does not mean those claims are risk-free: They may still draw competitor challenges, NAD scrutiny, state-law claims, or Lanham Act exposure if they imply something false about the product's tangible attributes. But plaintiffs bringing Lanham Act claims will need to connect the challenged statement to a product characteristic consumers can understand as bearing on the product itself—not merely to reputational credit for being first. For advertisers, the case is a reminder to be careful with category leadership claims, especially where "first" could be understood to imply a concrete product attribute, superior performance, or unique composition.

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FTC Halts Data Broker Monetizing Highly Sensitive Geodata

The Federal Trade Commission (FTC) reached a proposed settlement with location data broker Kochava, resolving allegations that the company sold precise geolocation data linked to hundreds of millions of mobile devices that could be used to trace consumers' visits to highly sensitive locations, including reproductive health clinics, places of worship, domestic violence shelters, homeless shelters, and addiction recovery centers. The proposed order would prohibit Kochava and its subsidiary, Collective Data Solutions, from selling, licensing, transferring, sharing, or disclosing sensitive location data unless they obtain consumers' affirmative express consent and use the data to provide a service directly requested by the consumer.

According to the FTC's complaint, Kochava purchased location information from mobile devices and packaged it into data feeds sold to customers for advertising and analytics purposes. The FTC alleged that the data was sufficiently precise to reveal where individual consumers lived, worked, worshipped, sought medical care, or obtained other sensitive services. Although Kochava marketed the data for advertising uses, the FTC alleged that the same data could function as a surveillance tool, particularly because it could be combined with other information to identify or track individual consumers.

The proposed order imposes a detailed compliance framework. Among other things, Kochava and CDS would be barred from misrepresenting their review of supplier consent practices; required to maintain a sensitive-location data program; required to audit suppliers' sourcing of location data; and required to provide consumers with a clear mechanism to withhold or revoke consent.

Key Takeaways

The settlement is notable not only because it targets the sale of sensitive location data, but because of the specificity of the compliance obligations imposed. Although the case began during the Khan FTC and reflects that Commission's aggressive privacy enforcement posture, the proposed settlement was approved under the Ferguson FTC. That makes the order an important signal that sensitive-location data remains a live enforcement priority, particularly where data practices create a risk that consumers can be identified, tracked, or profiled based on visits to highly sensitive places. Check out DWT's privacy newsletter, Trust Issues, for regular coverage of the evolving privacy landscape.

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