Q&A With NAD’s New Vice President/Director, Phyllis Marcus

The National Advertising Division (NAD), the advertising industry’s self-regulatory program that is part of the BBB National Programs, is under new leadership. Phyllis Marcus, who began her role on April 1, is the first NAD director to assume the role with FTC experience. Marcus spent 17 years at the FTC—most recently as Chief of Staff for the Advertising Practices Division. She comes to the NAD having served for nearly a decade as a partner at Hunton Andrews Kurth, where she headed the firm’s advertising counseling practice. 

Jennifer Fried had the opportunity to chat with Phyllis as she settles into her new role.

Fried: NAD is, of course, the advertising industry’s self-regulatory body. Do you view NAD as first and foremost a regulator that is in the business of enforcing FTC guidance? Or do you view NAD as primarily an industry body with its own distinct requirements and priorities?   

Marcus: I think that National Advertising Division occupies a bridging space between the regulator/enforcer and companies’ internal compliance programs. It’s a unique space, which by its nature is informed by the regulatory landscape. But because the NAD itself has such a long history and such a robust set of decisions, of necessity, it is also very much its own entity. You might say it is both of, informed by, and on its own track. Regardless of what happens next at the FTC, I believe companies will continue to come to the NAD to settle disputes. Things may ebb and flow elsewhere, but the NAD’s activities will continue apace.

Fried: What drew you to this role?

Marcus: For me, this role pulls together almost everything that had come before in terms of my experience. My work at the FTC, both in children’s privacy and in advertising enforcement flowed directly into my work in private practice. As a law firm partner, I advised consumer products brands and retailers on their advertising campaigns; I also worked with tech and streaming companies on children’s privacy compliance. When I was thinking about my next step, I hoped to retain as many of these strands of interest as I could. When the NAD opportunity appeared, I couldn’t help but smile. It really felt like so many things aligned for me as the door opened.

Fried: Any differences between how you might approach this role versus the previous director?

Marcus: Laura Brett leaves behind a wonderful and impressive legacy and I stand on her shoulders in taking this position. Going forward, I would say there is an opportunity for new industries to take a look at the NAD process and determine whether we offer an attractive venue to resolve their competitive advertising issues. You may also see us expand our monitoring cases into new areas, including more cases in the AI and beauty sector. I also foresee a number of other industries that are ripe for examination.

Fried: Will NAD’s self-regulatory role be impacted, in any way, by some of the changes and uncertainty in Washington DC?

Marcus: We can’t help but be affected by what’s going on right now in the executive branch. Regardless of whether the regulator takes a lighter touch or a heavier touch in certain areas, companies that advertised products and services will want to ensure there is a place and space where longstanding truth-in-advertising principles are applied. I can’t see that going away, and in fact, NAD may become even more essential.

Fried: You mentioned some areas of interest monitoring-wise. NAD has spent a lot of time reviewing endorsements and testimonials and other influencer advertising. Will NAD continue to focus on these issues from a monitoring perspective?

Marcus: Influencer marketing is an area that everyone is looking at – industry, regulators, and self-regulators alike. We continue to issue influencer cases and cases addressing material connection disclosures in our monitoring program, and I don’t expect the number of such cases to go down.

Fried: A lot of companies are interested in NAD’s new partnerships with Google and Meta that allow NAD to flag non-compliant claims for removal from these platforms. Do you see these mechanisms as playing a significant role in NAD’s compliance mechanism?

Marcus: The more mechanisms to enhance and encourage compliance, the better. Our referral program provides another tool in our tool kit to help with advertising compliance on the back end after NAD issues its decisions. I am heartened to see another partnership opportunity that combines our decision-making with platforms’ own ad policy guidelines to enhance compliance.

Fried: NAD offers different “tracks” for bringing challenges, one of which is the SWIFT track that is designed for “single-issue” challenges. Use of the SWIFT track has grown significantly since it was introduced several years ago. Do you see the SWIFT track continuing to gain momentum?

Marcus: Looking at NAD’s data, you can’t help but see the increase in popularity of our SWIFT track offering. That track responds to a desire in the industry to have “swift” resolution to a single well-defined issue, and it appears to have significant utility. If trends hold, I would expect to see cases continue to grow in that track.

Fried: Thanks for your time.

Marcus: My pleasure!