Monday, August 1, 2022

The Battle Between Smile Direct Club and Invisalign Continues...

 In a reopened case arising from prior NAD decisions, The National Advertising Division (NAD) of BBB National Programs determined that SmileDirectClub, LLC's claim that its treatment costs "60% less than Invisalign," without further qualification, was overly broad. Therefore, NAD recommended SmileDirectClub (SDC) modify the claim to clearly and conspicuously disclose that SDC aligners do not correct the same range of issues that might be addressed with Invisalign.

The claim at issue, which appeared on several of SDC's webpages, was challenged by Align Technology, Inc., maker of Invisalign clear aligners.

2020 Challenge

In a 2020 challenge brought by Align, NAD had recommended that SDC's "60% less than braces" and "60% less than other brands" claims both be discontinued. Based on NAD's recommendation, SDC agreed to discontinue those claims.

2021 Challenge

In 2021, SDC petitioned to reopen the matter pursuant to NAD/NARB Procedures. NAD granted the petition to re-open based on its review of a new survey of 200 practicing orthodontists conducted by a third-party market research company to address the concerns NAD had expressed in the prior decision.

NAD determined that SDC's survey constituted reliable evidence. However, NAD determined that without additional information, a consumer could take away an overly broad and potentially misleading message from the advertiser's "60% less than braces" claim. Therefore, NAD recommended that the advertising should be modified to:

Make clear that SDC consumers may not obtain the same results as those that could be obtained from braces.

Clearly disclose the basis of the price comparison, including that the average typical price was derived from a survey of orthodontists asking the price for treatment of mild-to-moderate malocclusion with braces as well as the additional services included in the average typical price (i.e., costs associated with diagnostics and exams).

Make clear that the SDC price being compared is its one-time single payment price, not the higher SmilePay monthly payment price, and does not include the cost of any additional services, such as retainers.

Further, NAD recommended that SDC discontinue the claim "60% less than other brands" because its survey did not ask respondents which brand of aligners they prescribe, making it unclear how much of the market is represented by the responses.

In its advertiser statement, SDC agreed to comply with the 2021 decision.

Reopened Proceeding

Subsequently, SDC commissioned a new survey (Second Survey), which was modified to address the concerns raised by Align in the 2021 reopened matter. SDC then launched new advertising claiming "60% less than Invisalign," with a disclosure stating:

"60% less than Invisalign" claim is based on Single pay vs. average fees (including diagnostics and in-person exams) for treatment of mild-to-moderate malocclusion with Invisalign as reported in a national survey of practicing dentists and orthodontists. Price comparison does not include additional costs, such as retainers. As treatment is highly individualized, results may not be the same.

Because of this new advertising, Align initiated a compliance challenge against SDC and SDC responded by petitioning to reopen both the 2020 and 2021 decisions so that NAD may consider its new evidence. NAD agreed to reopen this case to review the new evidence and consider whether SDC can support the express claim that its treatment is "60% less than Invisalign."

NAD determined that the methodology of SDC's Second Survey was reliable. However, NAD found that without further qualification, reasonable consumers can take away an overly broad message from the advertiser's "60% less than Invisalign" claim.

Further, although NAD recognized that SDC's disclosure was intended to follow guidance from the 2021 decision, NAD concluded that the disclosure is inadequate to inform consumers that SDC aligners will not correct the same range of issues that might be addressed by Invisalign. NAD explained that merely stating that treatment is individualized will only alert consumers to the fact that everyone may see different results, not that the 60% less comparison is comparing two services that differ in the malocclusions that they treat.

Therefore, NAD recommended that SDC modify the "60% less than Invisalign" claim to clearly and conspicuously disclose that SDC aligners do not correct the same range of issues that might be addressed with Invisalign.

In its advertiser statement, SmileDirectClub stated that "it will comply with the NAD's recommendations." The advertiser further stated that while it "disagrees that its qualified '60% less than Invisalign' claim sends any overly broad messages . . . as a strong supporter of the self-regulatory system, SDC will modify its disclosure to comply with the NAD's recommendations."

All BBB National Programs case decisions can be found in the case decision library. For the full text of NAD, NARB, and CARU decisions, subscribe to the online archive.

About BBB National Programs: BBB National Programs is where businesses turn to enhance consumer trust and consumers are heard. The non-profit organization creates a fairer playing field for businesses and a better experience for consumers through the development and delivery of effective third-party accountability and dispute resolution programs. Embracing its role as an independent organization since the restructuring of the Council of Better Business Bureaus in June 2019, BBB National Programs today oversees more than a dozen leading national industry self-regulation programs, and continues to evolve its work and grow its impact by providing business guidance and fostering best practices in arenas such as advertising, child-directed marketing, and privacy. To learn more, visit

About the National Advertising Division: The National Advertising Division (NAD) of BBB National Programs provides independent self-regulation and dispute resolution services, guiding the truthfulness of advertising across the U.S. NAD reviews national advertising in all media and its decisions set consistent standards for advertising truth and accuracy, delivering meaningful protection to consumers and leveling the playing field for business.

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