The NAD is comprised of eight lawyers headed by Andrea Levine, a former litigious regulator who cut her teeth in the New York state attorney general’s office. Gogoi may have been thinking of the National Advertising Review Council (NARC, also under the Better Business council’s umbrella), which has a few representatives from the major advertisers’ trade unions on its board and sets policies and procedures for the NAD. “We are a self-regulatory system that was created by the industry, but it is not staffed or administered by the industry,” Levine said. “They play no role in what cases we pursue and what decisions we make.”
The idea behind self-regulation is to avoid the lethargic government bureaucracy and expensive litigation that comes with filling suit at the FTC. The NAD issues far more decisions—over 150 a year—than any other regulatory body, according to Levine, and it achieves the same results as a court would. As far as green marketing, the NAD has seen a resurgence of complaints following the resurgence in advertising, evidence that the system is working.
“What I’m seeing is more seriousness of purpose,” said Levine of today’s advertising campaigns, which, in her opinion, are peddling environmental claims more earnestly than ever before. The early 1990s were the real heyday of environmental advertising, when marketers first employed the term “environmentally friendly” en masse to describe a variety of consumer goods. Ozone and plastics were important buzzwords, but, according to Levine, the state of green advertising was more of a free-for-all than it is now. For example, she said, old campaigns purported that disposable plastic forks are eco-friendly because they save washing, and others promoted “clean air” gasoline. Or, Levine added, “You’d say that something’s ozone friendly because you took the CFCs [chlorofluorocarbons] out by law, but left all the other volatile chemicals – that’s frivolous.”
Today’s wave of environmental marketing does not reach the scale of the early 1990s, according to Levine, but it is geared toward more consequential technological advances. Even if they are sometimes boastful or false, modern ads promote stuff like sustainable construction materials, non-toxic baby and hygiene products, and low emissions machinery. So businesses are publicizing (sometimes at a financial loss) their eco-credentials, and being more careful about it. “I think it’s a good thing,” Levine said.
Not all cases that come before the NAD (75 percent are competitor-generated) involve high-profile decisions about public safety and environmental impact. But even when the organization investigates the low-carb claims of a potato-chip manufacturer, it is playing a more significant role in the national debate than most journalists realize. “The FDA [Food & Drug Administration] still doesn’t have standards for carbo claims,” Levine explained, “but a few years ago, we started deciding cases, which laid the ground rules.” Ninety-five percent of companies that use the self-regulation program comply with NAD decisions. The office’s lawyers maintain a constant conversation with high-level scientists around the country to support their investigations, and its database goes back thirty-five years, with more than 4,000 archived decisions.
The NAD is cited in news stories a few times a year, but rarely mentioned twice. It made big headlines in 1998, when it took on the Nuclear Energy Institute, the industry trade group, over ads that claimed nuclear power was “environmentally clean.” It is true that nuclear does not produce the air pollution associated with fossil fuels, but the Institute’s advertising presented “a much broader message than the underlying evidence could support,” Levine told me.