WASHINGTON—The Nuclear Energy Institute today appealed a decision regarding its advertising by the National Advertising Division (NAD) of the Council of Better Business Bureaus. NEI said in the appeal that its advertising to educate policymakers is based on fact and meets all recognized criteria for corporate issue and policy advertising, contrary to an NAD decision issued last week.
"NEI provided evidence to support the fact that nuclear power plants don't burn anything to produce electricity, so they don't pollute the air," said Joe F. Colvin, NEI's chief executive officer. "Furthermore, NEI's advertising did not promote a product for direct sale to consumers. Rather, it was intended to communicate more broadly to policymakers the merits of nuclear technology used in medicine, food safety, space exploration and electricity production."
The appeal said NEI's advertising was solely intended to affect public policy, and that such policy or "issue" advertising is not within the jurisdiction of the NAD. The advertising was timed to coincide with consideration of public policy issues related to nuclear energy and promoted the benefits of nuclear technologies.
"As we demonstrated to NAD during the review process, NEI's advertisements clearly were targeted toward policymakers and opinion leaders," Colvin said. "Retail electricity consumers do not have the option today, or in the near future, to choose nuclear power plants as their single source for power.
"NEI and other organizations have the right to communicate ideas to government decisionmakers, including through advertising. Those communications are properly characterized as political or issue oriented," Colvin added. "NAD's decision could establish a subjective test that only the NAD could administer regarding whether a given advertisement is commercial speech because it could have an effect on one or more consumers."
The Nuclear Energy Institute's advertisements were placed in opinion leader newspapers, such as The Washington Post, The Washington Times and The New York Times, as well as policymaker-oriented publications, such as The New Republic, National Journal, The Economist, National Review and Atlantic Monthly. NEI did not advertise in any publication based in states that offer retail customer choice in electricity providers, such as California, Pennsylvania, New Hampshire and Massachusetts.
"Clearly the NAD is trying to establish new ground in issue advertising where it has no jurisdiction," Colvin said. "The nature of NEI's advertising and the publications in which it was placed underscores the fact that it was communicated to a policymaker audience and is not subject to NAD review."
NEI also challenged an NAD recommendation that the environmental claims in its advertising should be qualified to avoid potential for customer confusion. For example, NEI's advertisements said that nuclear power plants are "environmentally clean: Nuclear power plants don't burn anything to produce electricity, so they don't pollute the air."
"It is uncontrovertible that the use of nuclear power to generate electricity does not generate greenhouse gases, or other air pollutants," Colvin said.
In its decision, the NAD established a first-of-a-kind principle of requiring that "lifecycle" impacts must be included in any environmental benefit advertising claim. The NAD applied this lifecycle test even though the Federal Trade Commission's advertising guidelines say that the FTC "lacks sufficient information on which to base guidance on such claims [of a lifecycle theory of environmental benefit.]"
NEI's advertisement states that no air pollution is produced by the generation of electricity at nuclear power plants. However, the NAD said that emissions could be produced if fossil-fueled generation plants provide electricity for the process of enriching uranium fuel for use in nuclear power plants.
"It is inappropriate for the NAD to use this case to impose a previously unidentified advertising principle," Colvin said. "If NAD believes that the advertising standard of a lifecycle analysis should be adopted for any environmental claim, it should seek adoption of that principle by the FTC or approval through the National Advertising Review Board process rather than imposing a unique requirement on a single advertiser," he added.
The NAD noted in its decision that NEI demonstrated that electricity produced by nuclear energy "provides a number of environmental benefits that, with the proper qualifications, can be truthfully and accurately promoted."
However, in discussing this case with reporters, NAD Director Andrea Levine was quoted as saying that some environmental claims made by NEI were "unsupportable," even though that conclusion was not consistent with NAD's formal decision. Those comments were interpreted by the media as an NAD conclusion that NEI's ad were "false." NEI agreed to take NAD's concerns regarding potential misconceptions that its advertising might create into consideration in future advertising.
The Nuclear Energy Institute is the nuclear energy industry’s policy organization. This news release and additional information about nuclear energy are available on NEI’s Internet site at http://www.nei.org.