NAD Finds That Humor Doesn’t Always Indicate Puffery

The American Association of Orthodontists ran a series of social media ads for Happy Mouth Now, a fictional teledentistry company, which showed consumers struggling with the company’s products. The ads are funny, unless you work for a non-fictional teledentistry company, in which case you’d likely choose another adjective to describe them.

SmileDirectClub challenged the ads before the NAD arguing, among other things, that the campaign falsely implies that at-home teeth aligner products, such as the ones its sells, are ineffective and dangerous. NAD’s decision covers a lot of ground, but for the purposes of this post, we’re just going to focus on one of the ads in the campaign and on the thin line between what’s puffery and what requires substantiation.

In one ad, a woman struggles with the Happy Mouth Now dental impression kit she received by mail and gags on its goopy filling. Next, we see a slapstick sequence in which an incompetent trio uses the impression to make the teeth aligners. When the woman receives them, she struggles to put them in her mouth and is clearly worried about the result. The end card reads: Some things are best left to the professionals.”

Happy Mouth Ad

The advertiser argued that no consumer would believe that the exaggerated representations” or satirical imagery” in the ad are literally true. Although NAD agreed that consumers wouldn’t take the ad literally, that doesn’t automatically mean the ad is puffery or that the advertiser doesn’t have to substantiate anything in the ad. Instead, it’s important to consider whether the ad creates any consumer expectations.”

In this case, NAD found that the ad suggests that the challenger’s teledentistry services are ineffective and that the consumers who use them expose themselves to risk – both claims which require substantiation. The advertiser’s puffery arguments were also undercut by a caption to the videos which explained that Happy Mouth Now is fake, but the risks of not seeing an orthodontist in person are real.”

Many cases in which NAD has found puffery involve humor, but just because something is funny – or just because consumers won’t take it literally – doesn’t mean it’s puffery. As NAD noted, humor and hyperbole do not relieve an advertiser of its obligation to support messages that their advertisements might reasonably convey – especially when the advertising disparages a competitor’s product.”