NEW YORK – The National Advertising Division (NAD) of BBB National Programs determined that Boost Mobile supported the "Talk & Text" portion of the claim "Unlimited Data, Talk & Text" for its 4G LTE data plans. The advertising industry watchdog recommended, however, that Boost discontinue the claims "Unlimited SD Streaming," "Unlimited HD Streaming," and "Unlimited Data," because these were not substantiated and could not be cured by a disclosure. Boost will appeal NAD's recommendation regarding its "Unlimited Data" claim.

AT&T Services, Inc. challenged Boost's "unlimited" claims on the basis that the 4G LTE data plans are throttled to 2G speeds after the consumer hits the monthly data cap. NAD considered whether consumers are reasonably informed of the limitations of the offer.

NAD did not agree with AT&T's argument that Boost's "unlimited" claims convey the implied message that Boost customers will be able to use their phone as they wish without material limitation. In addition, NAD found the "Talk & Text" portion of the claim "Unlimited Data, Talk & Text" was substantiated. However, NAD did have several concerns with Boost's "unlimited" claims as they relate to the use of activities beyond talk and text and the disclosure used to qualify them ("you will be reduced to 2G data speeds for the remainder of the month").

Based on the case record, NAD concluded that at 2G speeds, consumers will be unable to stream video, surf the web, or do any other activity that requires substantial data usage at speeds that meet consumers' expectations for an unlimited plan. As noted in the decision, "At 2G speeds, many of today's most commonly used applications such as social-media, e-mail with attachments, web browsing on pages with embedded pictures, videos and ads and music may not work at all or will have such significant delays as to be functionally unavailable because the delays will likely cause the applications to time out." The only activities that would still function acceptably are those that use minimal amounts of data, such as email without attachments, or those that use no data, such as talk and text.

Consequently, NAD found that any disclosure that informs consumers that the service would not meet their expectations for an unlimited plan after they reach the data cap would contradict the "unlimited" claims. Because an advertiser cannot use a disclosure to contradict the message reasonably conveyed by the underlying claim, no disclosure can save these claims.

Therefore, NAD recommended that the claims "Unlimited SD Streaming," "Unlimited HD Streaming," and "Unlimited Data" be discontinued because they were not substantiated and could not be cured by a disclosure.

NAD noted that the claim "Go Unlimited" should be modified to make clear that consumers can talk and text after reaching the data cap.

However, NAD found that the "Talk & Text" portion of the claim "Unlimited Data, Talk & Text" was substantiated because consumers would be able to talk and text after reaching the data cap.

In its advertiser's statement, Boost Mobile stated that it agrees to comply with NAD's recommendations regarding "Unlimited SD Streaming" and "Unlimited HD Streaming," but that it will appeal NAD's determination that Boost's "Unlimited Data" claim is not substantiated. Such appeals are made to the National Advertising Review Board, the appellate-level truth-in-advertising body of BBB National Programs.

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