NAD Finds Certain Invisalign Product Performance Claims Substantiated; Recommends Clear & Conspicuous Disclosures and Discontinuation of Some Claims
For Immediate Release
Contact: Abby Hills, Director of Communications, BBB National Programs, 301.412.7769 / email@example.com
New York, NY – May 19, 2020 – The National Advertising Division (NAD) determined that Align Technology, Inc. (“Align”) substantiated certain product performance claims for Invisalign clear aligners as challenged by SmileDirectClub, LLC (“SDC”), maker of Smile Direct Club clear aligners, but recommended modification to the accompanying disclosures. In addition, NAD determined that Align’s description of its SmartForce attachments and the challenged social media posts were not misleading. However, NAD recommended that Align:
Discontinue challenged 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 an “Invisalign Teen Guarantee” claim or modify it to disclose the guarantee’s limited availability and that dentists are not able to participate.
NAD is an investigative unit of the advertising industry’s system of self-regulation and is a division of the BBB National Programs’ self-regulatory and dispute resolution programs.
The following are representative of the challenged claims:
“More Comfortable and Better-Fitting”; “Easier to Put on and Take Off”; “Easier to Insert and Remove.”
“Straightens Your Teeth with 75% More Predictability.”
“With Results Up To 2x Faster”; “Treatment Times Up to 50% Faster.”
“Backed by the Invisalign Teen Guarantee: if you’re unsatisfied with treatment within the first six months, you can switch to braces at no additional cost.”
The “Tier” designations used in Align’s Provider Locator tool indicate the practitioner’s level of skill and/or medical expertise.
Align’s SmartForce attachments pose undisclosed harms to consumers.
Invisalign treatment can be completed in as little as three months.
NAD determined that the advertiser 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” as compared to the previous version of Invisalign brand clear aligners made with the older EX30 material. 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, NAD recommended that the claims be modified to disclose that the object of comparison is limited to the previous version of Invisalign brand clear aligners made with the new ST30 material, either within the express claim or via a clear and conspicuous disclosure.
Further, 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 ST30 material and those treated with the older EX30 material, NAD had similar concerns regarding an overly broad consumer takeaway. NAD noted that neither the express claim nor the advertiser’s disclosure effectively clarifies the basis of comparison and it would be reasonable for a consumer to believe that the object of the comparison was other competing aligner brands. NAD had additional concerns about whether “75% predictability” is a consumer relevant benefit and whether the evidence is a close fit to the message conveyed. Therefore, NAD recommended that the advertiser modify the claim to (1) better reflect the benefit a 75% increase in predictability provides to consumers; (2) ensure the claim closely matches the underlying clinical evidence; and (2) clearly and conspicuously disclose that the claim is based on a comparison of the current Invisalign product to its predecessor.
NAD determined that the advertiser’s description of its SmartForce attachments - which described the attachments as “tiny and barely noticeable,” without describing how the attachments are affixed, moved, or any long-term cosmetic effects after Invisalign treatment has concluded - did not mislead consumers by failing to disclose material information regarding the consequences of their removal.
NAD considered the message reasonably conveyed by the challenged speed claims, “with results up to 2x faster” and “treatment times up to 50% faster,” both accompanied by the disclosure, “treatment times are up to 50% faster with technological advances to the Invisalign system, including SmartTrack material. With weekly aligner changes, compared with two week aligner wear.” NAD determined that one message reasonably conveyed was that treatment with weekly aligners was faster than with any two-week aligner product. After reviewing the advertiser’s evidence offered in support of the claims, NAD determined that it was not a good fit for the claims and recommended that they be discontinued.
NAD assessed the consumer take away from a challenged series of Instagram posts, and determined that these did not convey a misleading message regarding overall treatment time. However, with regard to the challenged YouTube Video, NAD determined that the claim made in the video voiceover (“each smile has made our system smarter, helping to reduce treatment times to as little as three months”), when accompanied by a graphic of a counter dialing backwards from “18” to “3,” implied that Invisalign treatment could be shortened from 18 months to 3 months and that an appreciable number of Invisalign customers could experience a shortened treatment time of three months. Because the advertiser did not provide supporting evidence, NAD recommended that the advertiser discontinue the challenged YouTube video.
NAD also evaluated the message conveyed by Align’s Provider Locator tool, which uses Google Maps technology to locate nearby providers of Invisalign treatment and includes colored icons that appear on the map and near the name of each provider. The colored icons correspond to one of six tier designations (Bronze, Silver, Gold, Platinum, Diamond, VIP). NAD determined that the “bronze to diamond” rankings reasonably convey the unsupported 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. NAD noted that while it is not inherently problematic to rank providers, the basis of the rankings is unclear. Therefore, NAD recommended that the advertiser modify its Provider Locator tool to make clear the basis for its categories and avoid the implied message that there is a correlation between quantity of Invisalign prescriptions and the orthodontic skill of Invisalign providers.
Finally, NAD recommended that the advertiser discontinue the Invisalign Teen Guarantee claim, “if you’re unsatisfied with treatment within the first six months, you can switch to braces at no additional cost,” or modify it to clearly and conspicuously disclose its limited availability and that dentists are not able to participate. NAD noted that the limited availability of a service is a material fact that must be clearly and conspicuously disclosed and that it was unclear what proportion of Invisalign providers were unable to offer the guarantee, either because they were dentists or otherwise declined to participate.
In its advertiser’s statement, Align agreed to comply with NAD’s recommendations and stated that it is “proud to support the self-regulatory process.”
About the National Advertising Division: National Advertising Division (NAD), a division of BBB National Programs, provides independent self-regulation overseeing the truthfulness of advertising across the U.S. NAD reviews national advertising in all media and its decisions set consistent standards for truth and accuracy.
About BBB National Programs: BBB National Programs fosters trust, innovation, and competition in the marketplace through the development and delivery of cost-effective, third-party self-regulation, dispute resolution and other programs. BBB National Programs is the home of industry self-regulatory and dispute resolution programs designed to resolve business issues and advance shared objectives by responding to marketplace concerns to create a better customer experience. To learn more about industry self-regulation, please visit: BBBNP.org.
BBB National Programs National Advertising Division Launches Expedited Fast-Track SWIFT Lane Designed to Address Misleading Advertising Disclosures
New York, NY – November 9, 2021 – Mindful of recent Federal Trade Commission (FTC) actions, BBB National Programs today announced a new, streamlined lane of the expedited Fast-Track SWIFT challenge submission process, one designed specifically to address the prominence and sufficiency of...
Media Advisory: FTC Commissioner Rebecca Slaughter to Keynote National Advertising Division “Future of Ad Law” 2021 Annual Conference
New York, NY – September 21, 2021 – In its 50th anniversary year, the National Advertising Division (NAD) of BBB National Programs will host the NAD 2021 Annual Conference virtually next week, running Wednesday, September 29 through Friday, October 1. Members of the media are invited to cover NAD 2021 with...
Children’s Advertising Review Unit Issues Revised Guidelines for Responsible Advertising to Children, Effective January 1, 2022
McLean, VA – July 29, 2021 – BBB National Programs’ Children’s Advertising Review Unit (CARU) today announced the issuance of the revised CARU Advertising Guidelines, widely recognized industry standards to assure that advertising directed to children is not deceptive, unfair, or inappropriate for its intended...
U.S.-Based BBB National Programs Announced as Winner for “Best Sectoral Initiative” by International Council of Advertising Self-Regulation
On 15 June 2021, the International Council for Advertising Self-Regulation (ICAS) announced the winners of its second edition of the ICAS Global Awards. The objective of the ICAS Awards is to reward initiatives that contribute to responsible marketing practices and a more effective and impactful...