This summer, we wrote about NAD's decision in SmileDirectClub (as well as another case brought against the advertiser). In its June 2020 opinion, NAD recommended that SmileDirectClub ("SDC") discontinue claims that its teeth aligner system is "3x faster than braces," finding that SDC could not properly substantiate the claim.

Now, NARB has upheld NAD's decision. In the panel opinion, NARB agreed that SDC's substantiation was insufficient to support the claim. 

SDC provided two studies of patient records for individuals treated with braces, and compared the data to SDC's own data it generates through a third party software that predicts the length of time a consumer will need to use prescribed aligners. SDC argued that the resulting time differentials provided the substantiation necessary for a "3x faster" claim.  

NARB disagreed, however. 

First, NARB determined that SDC's predictive timing data was insufficient to support the claim, stating that "the panel did not accept that the computer-based analysis conducted at the initiation of aligner therapy was a sufficient basis for determining the length of times under the SDC program to reach a satisfactory result" in part because "SDC did not engage in any systematic analysis post-treatment that would confirm the pre-treatment projections," and because the data did not account for the importance of patient compliance in ensuring efficient aligner treatment.

Second, NARB found that the studies SDC provided were not sufficiently reliable to prove the duration of treatment with braces, because they were "too small to allow generalization to a typical length of time for the successful use of braces" and because "each study analyzed data from only one professional office." Further, the data was not necessarily gathered for the purpose of asessing the typical duration of braces treatment.

Because NARB determined SDC could not properly support its "3x faster" claim, the panel affirmed NAD's decision and recommended discontinuance of the claim.

SDC agreed to comply, but expressly reserved its right to petition NAD to reopen the underlying case in light of new evidence, pursuant to NAD's procedures.