Sometimes advertising lawyers can be real drama royals. But I do think the latest in the teeth-straightening wars at NAD (link to SmileDirect press release below) deserves some attention. I am not yet sure if this signals a new direction for NAD or if this case will be more limited to cases with comparative savings messages. But its recommendation goes beyond what I would have expected.

Based on cases spanning many years, the summary of how to make comparative claims is basically as follows:

• Claims may not contain false disparagement.
• Comparative claims must be narrowly tailored (to a product, not a line, if appropriate).
• Comparisons should be apples to apples; if comparing products that are different, this should be clear (e.g., comparing company’s premium lasagna to a competitor’s best-selling regular lasagna as long as this is clear (link)).
• Comparison charts are fair game and can only compare select attributes and not all the ways two products might be weighed (link to vitamin case). 
• There is a duty to keep tracking the market and remove the claim if/when a competitor innovates and renders the comparison no longer true.

In the next entry in the Invisalign/SmileDirect saga, SmileDirect reintroduced a comparative savings claim it had previously discontinued on NAD’s recommendation (link). The prior claim was “60% less than braces or other products” while the new claim was “60% less than Invisalign.” Invisalign opened a compliance challenge into the claim. SmileDirect took advantage of the process to reopen a prior case, paying a filing fee and submitting its new evidence. And SmileDirect did what it was supposed to do. It carried out a new pricing study removing NAD’s previous criticisms. When it launched the new claim, it qualified it in ways NAD recommended. SmileDirect understandably thought it had nailed it. So what went wrong? NAD found that SmileDirect had done the work it needed to do to appropriately substantiate the claim but failed to add to its disclaimer that the SmileDirect aligners did not treat the same broad range of issues that Invisalign can treat. Hmmmm. It would seem that a potential customer who was not a good candidate for SmileDirect could learn this fairly early in the process, such that a reasonable consumer would understand the 60% less claim would only apply if the consumer could be treated by either SmileDirect or Invisalign.

Perhaps NAD’s view was that people should be alerted in advance that they could potentially save time, albeit at a higher cost, by opting up front for Invisalign. Who’s to say? But prior cases have made clear that truthful differentiating characteristics can be advertised, and I do not recall any prior requirement to include “only if you are a candidate for both products being compared.” We will see if this case is the start of a trend for NAD to require more qualification of claims beyond what might be clearly material. The NAD conference is returning in person this year in Washington, D.C., rather than New York (link). We will have the opportunity to ask the NAD staff these and other burning questions! 

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