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Setting It Straight: NAD Weighs In On Teeth Aligner Claims

06/12/2020 | 10:08 am

Since April, NAD has released two opinions surrounding teeth aligner claims: one in a challenge brought by Align Technologies against SmileDirectClub LLC, and one in a challenge brought by SmileDirectClub LLC against Align Technologies.

Notably, in each case, the challenger opposed claims the advertiser made in fairly unconventional ways.

For example, in the first of the two cases, Align challenged claims made in SDC's "Smile Assessment Quiz." The quiz asked consumers to select whether they suffered from mild, moderate, or moderate+ malocclusion, which meant consumers with severe cases had to select moderate+. Align alleged, and NAD agreed, that because the quiz results ultimately informed all consumers who took the quiz that they were a candidate for SDC, the quiz potentially also captured customers with severe malocclusion cases that were not proper candidates for SDC's product. As such, NAD recommended modification of the quiz.

In the second of the two cases, SDC challenged claims made via Align's Provider Locator Tool. The tool locates nearby providers of Invisalign, and labels each provider with one of six tier designations ranging from bronze to VIP. NAD determined that the rankings conveyed the message that "those providers on the higher end of the spectrum are more skilled at Invisalign treatment, and therefore a more desirable choice, than those on the lower end" when in fact, the rankings only represented the number of patients a particular doctor has treated with Invisalign. NAD ultimately recommended that Align modify the tool to make clear the basis for the ranking system and "avoid the implied message that there is a correlation between quantity of Invisalign prescriptions and the orthodontic skill of Invisalign providers. Notably, NAD made this determination only after addressing a jurisdictional challenger by the advertiser, who argued that the Provider Locator tool was not a claim that could be evaluated for truth and accuracy. NAD disagreed, finding that the ranking system "convey[ed] a message about the advertiser's evaluation of the provider's level of experience" and could "persuade the audience of the value of a particular service provider."

Both cases also featured challenges to comparative claims that did not directly reference the respective advertiser's competitors. However, in each case, NAD determined consumers would interpret as a comparison to the respective challenger and other competitors. 

For example, in the first case, Align took issue with SDC's claims relating to speed, arguing that the claims were comparative, including: "Get a smile you'll love in as little as 6 months; Finish in as little as 6 months; Our average smile plan gets you a smile you will love 3x sooner." Ultimately, NAD's determinations on the claims came down to the context and appearance on SDC's site. The first of the three claims appeared on a webpage comparing different SDC products, and NAD determined that a reasonable consumer would view the claim as a comparison between SDC offerings. However, the latter two claims appeared on a page titled "4 Reasons to Choose Our Clear Aligners" and included bullet pointed lists with other comparative claims such as "up to 60% less than braces." As such, NAD determined that the claims were comparative and, because SDC did not present sufficient evidence to substantiate them in a comparative context, NAD recommended discontinuance/modification.

In the second case, SDC took issue with Align's claims that Invisalign is "more comfortable and better fitting," "easier to put on and take off, " "easier to insert and remove," and "straightens you teeth with 75% more predictability." For each, Align argued that the comparison Align was communicating was between Invisalign clear aligners, and aligners made of a different type of material - single layer .030 inch (Ex30) material. However, NAD determined that the disclosures (where applicable) were not sufficiently clear and conspicuous, and as such the claims likely conveyed the unsupported message that the claims were comparative as to all other competing clear aligners.  As such, NAD recommended modification of the claims.

In addition, the cases addressed additional issues such as product performance claims, consumer testimonials, and guarantees. 

Align Technology, Inc. (Invisalign Clear Aligner System), Report #6365, NAD/CARU Case Reports (May 2020).

SmileDirectClub, LLC (Smile Direct Club Clear Aligners), Report #6360, NAD/CARU Case (April 2020).

Originally published 09 June 2020

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This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

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