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Volume XI, Number 133

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NAD Recommends SmileDirectClub Straighten Out Some of its Aligner Advertising Claims

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!)

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Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 120
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About this Author

Phyllis H. Marcus Partner Consumer Products Food Industry Retail Practices
Partner

With 17 years of experience at the FTC, Phyllis brings a unique advertising and children’s privacy vantage point to our clients.

Phyllis heads the firm’s advertising counseling practice, and focuses on all aspects of advertising, from the initial development of a claim to its ultimate defense in the marketplace. Phyllis’s practice includes claim creation and substantiation, pre-acquisition due diligence, dissemination in traditional and digital media, and both offensive and defensive competitor challenges. She also counsels clients on the intricacies of compliance with the Children’...

202-955-1810
Kelly R. Oeltjenbruns Complex Commercial Litigation Hunton Andrews Kurth Washington, DC
Associate

Kelly’s practice focuses on class action, consumer protection and other complex commercial litigation.

Kelly recently finished a term as a judicial law clerk to the Honorable Roger Wollman in the Court of Appeals for the Eighth Circuit. A member of the litigation and issues and appeals teams, she represents clients in a wide range of litigation matters including those involving Title IX, antitrust, and privacy and consumer law. She has multidistrict litigation experience and assists clients in various stages of litigation, including motions practice, discovery and...

202-419-2126
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