A recent decision from the National Advertising Division (“NAD”) regarding claims made by SmileDirectClub, LLC (“SDC”) in online advertising for its Smile Direct Club Clear Aligners provides guidance on a variety of key advertising issues, including comparative and savings claims, guarantees and consumer reviews and testimonials. NAD recommended the modification or discontinuation of many of the claims challenged by Align Technology, Inc. (“Align”), maker of Invisalign clear aligners.

First, Align argued that SDC’s advertising misled consumers by claiming that its products and services provide smile correction for the same severity levels, or for a comparable range, as Invisalign. According to the challenger, claims such as “SmileDirectClub invisible aligners straighten most smiles in an average of 6 months” conveyed a message that SDC can fix most teeth issues, including complex conditions, without proper disclosure that SDC’s product is actually intended to treat milder and less complex cases of teeth malocclusion.

In recommending that the advertiser modify its claim by disclosing its limitation to mild-to-moderate malocclusion cases, NAD explained that “[a]dvertisers are free to make ‘apples-to-oranges’ comparisons in order to highlight features or attributes of their products, provided that the advertiser disclose the material differences between the products being compared.”

Second, NAD determined that SDC had substantiated, through expert declarations, internal data and a clinical study, many of its express product claims; however, NAD determined that the advertiser had not provided a reasonable basis for its challenged savings claims, including “60% less than other brands” and “60% less than braces,” and recommended that SDC discontinue such claims. In support of these claims, SDC had compared its “Single Pay” price to the national average cost of orthodontic treatments billed to insurance. NAD found this evidence insufficient because (i) SDC failed to account for its other (monthly) payment option, which results in a higher total payment amount, and (ii) the referenced national average cost of orthodontic treatments reflects all orthodontic costs charged to a particular billing code, including more severe issues than those treated by SDC aligners.

Next, NAD found that SDC’s presentation of some “speed” claims — “Our average smile plan gets you a smile you will love 3x sooner” together with the claim, “Finish in as little as 6 months,” on the same webpage under the same heading — conveyed a comparative message and therefore would require evidence demonstrating that SDC aligners could provide results three times sooner than braces in connection with “similar levels of misalignment severity.” Accordingly, NAD recommended that SDC discontinue its “Our average smile plan gets you a smile you will love 3x sooner” claim and modify “Finish in as little as 6 months” to avoid conveying the comparative message that SDC’s treatment provides similar results three times sooner than braces.

Align also took issue with SDC’s use of “before” and “after” photography as well as consumer testimonials that contained statements about the comparative cost and speed of treatment of SDC. With respect to the first issue, NAD explained that “[i]t is well-established that ‘before’ and ‘after’ images are performance claims that must be supported, accurate, and representative of the level of product efficacy that a reasonable consumer can expect to achieve.” According to NAD, the advertiser failed to provide evidence demonstrating that its photos represented the typical results of consumers of SDC aligners.

Similarly, consumer testimonials that make product performance claims must be substantiated as if they were made directly by an advertiser, and “reviews convey[ing] customers’ comparative experiences with objectively provable attributes of competing products” require “substantiation demonstrating that customers will achieve those same experiences.” Because SDC did not provide a reasonable basis for the comparisons reflected in its published testimonials, NAD recommended that SDC discontinue such claims, which included: “I got the smile I always wanted with ½ the cost and time that regular aligners are“; “The process was fast, painless, and by far the best price vs. other alternatives“; and “I love my new smile and am even happier that it only cost me a quarter, yes you read that part right a QUARTER of the price for Invisalign.”

Finally, NAD analyzed the challenger’s claim that SDC’s “Confident Smile Guarantee” was misleading because it failed to disclose material terms. NAD disagreed that the Guarantee implied to consumers that any dissatisfaction would result in a full refund, determining that the policy “very clearly states that [a] ‘licensed dentist’ will determine whether the consumer is inappropriate for the SDC product and therefore eligible for a refund.” However, NAD recommended a modified description of the Guarantee to disclose that consumers must pay the cost of return shipping and will not be refunded the cost of their impression kit or scan once they have begun treatment, as these were found to be “material limitations.”

There is a lot to chew on in this decision, and advertisers should consider claims carefully before they take try to take a bite out of the competition through comparative advertising.