The National Advertising Division (NAD) of BBB National Programs recommended that Straight Smile, LLC (Byte):
- Take reasonable measures to provide clear and conspicuous disclosures informing consumers that the review was incentivized for each incentivized review on its website and on BestCompany.com; and
- Discontinue its advertising ranking on BestCompany.com or modify the advertising to ensure that consumers clearly understand that Best Company’s ranking is advertising for Byte and not an honest review from an independent third party.
The claims were challenged by SmileDirectClub, LLC.
During the proceeding, the advertiser voluntarily discontinued or modified certain challenged claims, including claims that Byte is “#1” rated, comparative and monadic claims regarding Byte’s treatment time, claims regarding nighttime aligners, cost savings and discounts claims, claims about SmileDirectClub, and implied claims. The advertiser further agreed to modify the disclosure on its reviews page to make clear that the disclosure also applies to its video reviews and discontinued a video advertisement being shown on BestCompany.com. NAD did not review these claims on the merits.
Consumer Reviews on Byte’s Website
NAD considered whether Byte properly disclosed incentivized reviews on its website, which contains both video and textual reviews from consumers and includes the small disclosure stating “We’ve asked our reviewers to share the good, the bad, and the ugly with us. These reviews may include ones where known purchasers were given free product in exchange for their honest opinions.” NAD determined that a blanket disclosure is not effective in putting consumers on notice that a review has been incentivized. NAD noted that a single, blanket disclosure tells consumers only that there may be some reviews that were incentivized and gives the consumer no way to ascertain the credibility of each review.
Therefore, NAD concluded that Byte’s disclosure was not sufficient and recommended that the advertiser take reasonable measures to provide clear and conspicuous disclosures for each incentivized review on its website.
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Consumer Reviews on BestCompany.com
NAD also considered whether consumer reviews posted for Byte’s products on third-party website BestCompany.com included disclosures about incentivization. Byte pays Best Company to solicit reviews and has a relationship with Best Company to promote its products. Through this relationship, Byte has ultimate responsibility for advertising claims run by Best Company on its behalf.
NAD found that incentivized reviews that appear on BestCompany.com were solicited as part of Best Company’s relationship with Byte and thus are part of the advertising relationship between Byte and Best Company. Accordingly, NAD recommended that the advertiser take reasonable measures to provide clear and conspicuous disclosures for each incentivized review and add a clear and conspicuous disclosure to its product page on BestCompany.com citing its user reviews.
BestCompany.com Ranking Claims
Among the invisible braces brands listed on BestCompany.com (which includes SmileDirectClub as well as various other competitors of Byte), BestCompany.com ranks Byte the best in several areas. Although there is a disclosure link titled “Income Disclosure” at the top of each webpage, NAD determined that the relationship between Byte and BestCompany.com is not clearly disclosed through that link because:
- In order to see the disclosure, consumers must click on a link titled “Income Disclosure” at the top of the page;
- The title “Income Disclosure” may not alert consumers that if they click on the link, they will learn about the relationship between BestCompany.com and the companies it is ranking and recommending; and
- Even if consumers click on the link, the disclosure does not identify Byte but merely states that some companies may provide compensation. In addition, NAD noted that the general disclosure that some content is incentivized is not sufficient because consumers viewing Byte’s profile will not realize that this company has paid Best Company.
NAD further noted that Best Company rankings for the “Invisible Braces” category are influenced by the material connection between Best Company and the company ranked. For these reasons, NAD recommended that Byte discontinue its advertising ranking on BestCompany.com or modify the advertising to ensure that consumers clearly understand that Best Company’s ranking is advertising for Byte and not an honest review from an independent third party.
In its advertiser statement, Byte stated that it “will comply with NAD’s decision.” Further, the advertiser stated that while it disagrees with NAD’s views that “Byte’s relationship with Best Company was not properly disclosed” and that Best Company’s ranking of Byte “constitutes an advertising claim run on behalf of Byte,” it “respects the self-regulatory process and thanks NAD for its consideration of this matter.”
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