National Advertising Review Board Refers Smile Prep’s Clear Aligners Advertising to FTC After Compliance Review
New York, NY – September 27, 2023 – The National Advertising Review Board (NARB), the appellate advertising body of BBB National Programs, has referred advertising claims made by Smile Prep, LLC to the Federal Trade Commission (FTC) for review and possible enforcement action after the company declined to accept NARB recommendations to modify certain claims and disclosures on its website.
The challenged claims appeared on SmilePrep.com, which presents its reviews and rankings of clear aligner companies and their products and services as editorial content. Smile Prep has affiliate relationships with some, but not all, of the companies whose clear aligner products and services Smile Prep reviews and ranks on its website. Commissions from Smile Prep’s affiliate partners are its sole source of revenue.
In its decision (NARB Panel #310), the NARB Panel affirmed NAD’s decision (Case No. 7131) and recommended, among other things, that Smile Prep:
- Clearly and conspicuously disclose that the rankings, reviews, and product information for affiliate partners’ clear aligners on SmilePrep.com are advertising.
- Discontinue certain performance claims about the products and services of Smile Prep’s affiliate partners.
In its advertiser statement, Smile Prep stated that it disagreed with the NARB decision but would nevertheless make a good faith effort to comply with its recommendations. NARB opened a compliance inquiry based on concerns raised by the challenger, SmileDirectClub, LLC. In its Compliance Report, NARB found that Smile Prep had made a number of changes to its website in good faith but nevertheless was still not compliant.
Disclosure Recommendation
As part of its effort to comply with the NARB Panel’s recommendation Smile Prep revised its disclosure of affiliate relationships so that it appeared in a box at the top of each clear aligner review page stating, “Advertising Disclosure” in bold, followed by: “When you buy products and services through our links, we may earn commissions.”
NARB found that this disclosure is neither clear nor conspicuous, and therefore, Smile Prep has not complied with the decision in this respect.
Product Claims
In its decision, the NARB Panel recommended that Smile Prep discontinue the claim that “when it comes to customer service, Byte is the clear winner” and has “better customer support.” Although Smile Prep added qualifiers to these claims, NARB concluded that the addition of the phrases “it is our impression” and “we feel” did not change the nature of the message that the sponsor had engaged in a merits analysis of the clear aligner services being reviewed.
Further, NARB determined that modified language, which attributes performance claims to Byte, including “According to Byte,” and “According to Byte, the Hyper Byte can help provide a more comfortable aligner fit,” did not provide sufficient qualification. NARB also assessed 54 changes made by Smile Prep and found that the majority of the modified claims did not comply with the recommendation to discontinue certain aligner performance claims made by its affiliate partners on the grounds that Smile Prep had not independently substantiated them.
For these reasons, NARB concluded that the customer service references and product performance of affiliate partner product claims do not comply with the NARB recommendations.
NARB requested Smile Prep’s agreement to make further modifications consistent with the analysis and comments in this Compliance decision.
In response, Smile Prep advised NARB that it believed that it was already in compliance with the decision and applicable laws and that it could not make all of the additional changes NARB had suggested. Smile Prep further stated that, in the event of a referral, it looked forward to working with the FTC to craft a meaningful and fair approach to the regulation of all affiliate review sites.
As Smile Prep declined to make additional modifications consistent with the analyses in the compliance review, NARB has referred the matter to the FTC for review.
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