Guideline provides 401(k) programs to small and medium sized businesses. Recently, Guideline advertised that – for users of the Gusto online payroll and human resources platform – it is "Gusto's #1 retirement partner" and the "Most popular 401(k) with Gusto customers." The basis for Guideline's claims is that more Gusto customers have 401(k) plans with Guideline than any other 401(k) provider on the Gusto platform. Sounds pretty good, right?
A competitor of Guideline, Human Interest, challenged the claims at the National Advertising Division, arguing that the claims were false and misleading because, in 2025, more Gusto customers chose to sign up for Human Interest's 401(k) plans than chose to sign up for Guideline's plans. Sounds like Human Interest is also pretty popular?
So, who is right?
It's a basic principle of advertising law that advertisers are responsible for all reasonable interpretations of their advertising claims. As the NAD explained, "Advertisers must provide a reasonable basis for all messages reasonably conveyed by their claims, whether they intended those messages or not."
Here, the NAD held that, although Guideline can substantiate the takeaway that it has the most Gusto customers, Guideline wasn't able to support all reasonable interpretations of the claims that it is making – including the takeaway that more customers are currently choosing Guideline. The NAD explained, "NAD found that one message reasonably conveyed is that Gusto clients are currently selecting Guideline for their 401(k) plan more often than any other provider. While the record demonstrated that Guideline is the leader in the total number of active 401(k) plans among Gusto customers, Guideline did not demonstrate which 401(k0 is currently being selected by more Gusto customers."
What's the solution here?
While NAD thought that the claims, as currently being used, were misleading, NAD didn't say that Guideline can't promote the fact that it has the most Gusto customers. Rather, NAD said that if Gusto wants to promote its popularity, it just needs to clearly state the basis for its claims.
Human Interest v. Guideline, NAD Case No. 7476 (07/03/25).
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