Smile Direct Club and Invisalign Challenge Each Other’s Advertising for Clear Aligners

Advertising Law

In tit-for-tat challenges, claims for Smile Direct Club (SDC) clear aligners were challenged with the NAD by Align Technology, maker of Invisalign clear aligners, and claims for Invisalign clear aligners were challenged by SDC.

In the first case, the NAD determined that SDC substantiated the claims “Our aligners are designed not only to help straighten smiles, but they may also correct bite issues” and “The clear aligner system is designed for minor to moderate teeth correction, including space between teeth, crowding, rotations, and some bite corrections.” However, the NAD recommended that SDC modify the claim “Smile Direct Club invisible aligners straighten most smiles in an average of 6 months” to disclose that the claim is limited to the mild-to-moderate misalignment that the aligners are designed to treat. The NAD also recommended that SDC discontinue the challenged comparative claims “60% less than other brands” and “60% less than braces” because SDC had not provided adequate substantiation; discontinue the claim “Our average smile plan gets you a smile you will love 3x sooner” and modify the claim “Finish in as little as 6 months” to avoid conveying the comparative message that the SDC treatment provides similar results “3x sooner” than braces; modify questions in SDC’s “Smile Assessment” quiz in order not to imply that SDC can treat all types of misalignment; discontinue the use of “before” and “after” photos because SDC failed to provide objective evidence demonstrating that these images represent typical results that consumers would experience using SDC aligners; and modify the “Confident Smile Guarantee” policy to disclose that consumers must pay return shipping and will not be refunded the cost of their impression kit or scan once they have begun treatment.

In the second case, the NAD determined that Align substantiated the claims that Invisalign clear aligners are “more comfortable and better-fitting,” “easier to put on and take off,” and “easier to insert and remove,” compared to the previous version of Invisalign clear aligners. However, because Align’s footnote disclosures regarding the basis of the comparison were ineffective to properly limit the consumer takeaway and avoid an unsupported broad comparative superiority message versus the entire aligner market, the NAD recommended that the claims be modified to disclose that the object of comparison is limited to the previous version of Invisalign clear aligners, either within the express claim or with a clear and conspicuous disclosure. With regard to the claim “straightens your teeth with 75% more predictability,” which was based on a study comparing tooth movement for Invisalign customers treated with the new material and those treated with the older material, the NAD had similar concerns regarding an overly broad consumer takeaway and recommended that the claim be modified to clearly and conspicuously disclose the basis of the comparison. The NAD also recommended that Align discontinue the comparative claims “with results up to 2x faster” and “treatment times up to 50% faster,” discontinue a challenged YouTube video, modify its Provider Locator tool, and either discontinue its “Invisalign Teen Guarantee” claim or modify it to disclose the guarantee’s limited availability and that dentists are not able to participate.



pursuant to New York DR 2-101(f)

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