Earlier this year, Align Technology filed an NAD challenge against SmileDirectClub over claims that company made about its teeth aligners. After that, SmileDirectClub filed its own challenge against Align over claims that Align made about its own teeth aligners. After the dust settled on these cases, neither company was left smiling. Although the cases cover a lot of ground, we’re just going to focus on one issue in the second case that frequently comes up – identifying the object of a comparison.
Align advertised that its Invisalign clear aligners are “more comfortable and better-fitting,” as well as “easier to put on and take off.” Comparative claims like these often beg the same question: “more comfortable,” “better fitting,” and “easier to put on and take off” . . . than what? SmileDirectClub argued that consumers would understand that to be a superiority claim against competing aligners, such as the ones it sells. Align argued that a footnote tied to the claim made clear that wasn’t the case.
A disclosure at the bottom of the web page explained that the comparison was against “aligners made from single layer .030 inch (Ex30) material.” And to support its claims, Align presented various types of evidence comparing how consumers felt about “Invisalign brand aligners made out of the older EX30 material” versus “Invisalign brand aligners made out of new ST30 material.” Thus, Align argued that the comparison was against its previous product and that the claim was substantiated.
NAD didn’t agree, for a number of reasons. First, the disclosures were ineffective because they appear far removed from the claims they modify and they were too small for consumers to easily notice, read, and understand. Second, NAD found the disclosures were too technical, and that consumers would not realize that the comparison was against the company’s previous product. In absence of any clarification, consumers are likely to believe the claims to be a comparison against competing products.
There are at least two important lessons to take away from this decision. First, it’s important to clearly identify the basis of your comparison. That should be identified in the claim itself or in a clear disclosure that appears close to the claim – a footnote may not work. And second, ST30 really does seem to be better than EX30.