Hunton Retail Law Resource

Responding to a challenge from Align Technology, Inc. (Align), maker of Invisalign, the National Advertising Division (NAD) recommended that SmileDirectClub (SDC) modify certain of its comparative advertising claims, while finding that others were sufficiently substantiated.

The NAD’s concerns fell into three categories: timing, price and style claims. As to timing SDC claimed that its aligners “straightened most smiles in an average of 6 months,” which was “3x sooner.” The NAD deemed these claims to compare SDC aligners with metal braces, and found that SDC provided no evidence to support that its aligners provided results “3x sooner” than braces in similar levels of misalignment severity. The NAD also asked SDC to change the “most smiles” piece of the claim, as its evidence supported only that people with mild-to-moderate malocclusion saw straighter smiles in the time alleged.

With respect to price, the NAD found that SDC’s claims of price savings—“60% less than other brands” and “60% less than braces”—were not supported by SDC’s evidence.

Finally, SDC touted its straight, not scalloped, aligners as providing “optimal turning force … without the need for attachments and buttons.” But to support its claim, SDC offered a scientific study that did not test actual products, and the NAD recommended discontinuation.

Other claims made by product reviews, before and after pictures, and SDC’s Smile Assessment quiz were also flagged for modification. The NAD determined that certain comparative reviews were unsubstantiated; that SDC failed to show that its images represented typical results; and that its quiz reasonably conveyed the message[SBS1]  that SDC can treat all types of malocclusions, including those beyond the severity that its aligners are intended to treat.

SDC agreed to comply with the NAD’s recommendations, citing its prior decision to remove many of the offending claims. Nevertheless, the decision is a good reminder to brush up on advertising substantiation requirements to avoid painful extraction. (We just couldn’t help ourselves!)