AUSTRALIA Trends and Developments Contributed by: Ben Miller, Stephen Rohl, Katie Pryor and Jenny Wong, Maddocks
efficacy to Invisalign treatment and traditional braces treatment. 2. The price comparison representations – the SDC Aligner Treatment was less expensive in all instances, or was “60% less” or “up to 60% less” expensive for equivalent treatments obtained from an orthodontist or dentist, such as braces or Invisalign. 3. The lower cost representations the SDC Aligner Treatment provided a comprehensive solution to orthodontic issues, or alternatively all non-severe orthodontic issues, at significantly less cost than that of equivalent treatments with braces or Invisalign. Again, the Full Court did not agree with the pri - mary judge and held that by making the price comparison representations and the lower cost representations, SDC had contravened the ACL, as the dominant message of the advertisements was that the products were interchangeable or equivalent or had an equivalent effect on con - sumers’ teeth, but that SDC Aligner Treatment cost “60% less”. This message was not quali - fied by reference to the severity of the problems with the consumers’ teeth. Further, even though this message did not include express claims that SDC cost 60% less than Invisalign, their Hon - ours held that the ordinary reasonable consum - er interested in undertaking treatment for teeth straightening would understand that SDC could only be referring to its competitors. 4. The less than AUD4-a-day representation – the total cost associated with SDC Aligner Treat - ment was “less than $4 a day” for the duration of treatment. SDC admitted that it made the representation in its advertising material but that the representa -
tion was not referring to the treatment time of an average of four-to-six months as contended by Invisalign, but rather to the 24-month period over which instalments for SDC Aligner Treat - ment were paid. The primary judge held that the placement of a footnote above the full stop was sufficiently prominent to alert the ordinary and reasonable consumer to the manner in which the represen - tation had been calculated. Their Honours con - sidered the primary judge had made no error. 5. The total-cost representation – the total cost associated with the SDC Aligner Treatment was either AUD2,825 for upfront payment or AUD3,155 by instalments. Invisalign alleged that the total-cost repre - sentation was misleading as it did not refer to the ongoing costs associated with purchasing retainers at six-monthly intervals after the SDC Aligner Treatment was completed, which was required to keep a consumer’s teeth in their new position. The Full Court agreed with the primary judge that it was clear that the ongoing costs were outside the cost of the SDC Aligner Treat - ment and therefore that the total-cost represen - tation did not contravene the ACL. Notably, the only representations which were made by Invisalign were those concerning comparative advertising. This is an important reminder that when engaging in comparative advertising, context is key. It is always prudent to ensure that comparative advertisements have accurate comparisons that compare like prod - ucts and/or services fairly.
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