SmileDirectClub Is Trying To Silence Criticism By Tying Refunds To Non-Disparagement Agreements

from the I-see-you're-unhappy-with-our-product.-Let-me-make-you-unhappy-about-our-ser dept

The New York Times has noticed a company with the word “smile” in its name really isn’t all that friendly. Nearly 2 years ago, SmileDirectClub sent legal threats to Gizmodo after a post discussing the potential drawbacks of getting your teeth fixed over the internet was published under the title “You Could Fuck Up Your Mouth With SmileDirectClub.”

Nothing about the article was false. Not even the title. SmileDirectClub sells teeth-straightening devices over the internet. Most teeth-straightening devices are provided by orthodontists after x-rays and in-person examinations. SmileDirect is, well, more direct, claiming it can provide the right dental appliance without all the in-person stuff by having customers send in a mold of their teeth or by visiting a “Smile Shop” to have their mouth and teeth scanned.

The potential to have things go wrong — especially when your only consultation during the teeth-straightening process is online chats with SmileDirect’s dental staff — is far from nonexistent. Appliances like these can cause more problems rather than fixing the one they were purchased for.

All of this was covered in the article and everything said about SmileDirect’s business model was truthful. This didn’t stop SmileDirect’s legal reps from filing a defamation lawsuit in defamation lawsuit-friendly (pre-anti-SLAPP law) Tennessee. SmileDirect said all sorts of ridiculous things about clickbait and Peter Thiel’s takedown of Gawker, but really didn’t make any actionable libel allegations. That SmileDirect voluntarily dismissed its lawsuit less than a week after it filed it as good an endorsement as any for the stupid arguments in its complaint.

Anyway, the NYT is on the case now that more people are unhappy with their dental appliances and SmileDirect is more forceful in preventing unhappy people from complaining about its products and services. Here’s how SmileDirect conducts business with its end users.

No x-ray or dental examination is performed but customers are required to sign a consent form saying that they did have one performed before purchasing SmileDirectClub’s dental device. This removes some of the company’s liability. If the customer didn’t actually get this done, it can’t hold SmileDirect responsible for problems that might have been caught with a real exam. Since the company appears to target people who want to avoid dental exams and save money on dental appliances, plenty of customers aren’t being honest when they check that first consent box.

Then the form gets a whole lot darker.

The form also states that they cannot sue the company for any reason.

Arbitration: the best friend of every questionable company. And there’s more. The company offers a very limited warranty that’s tied to a very big gag order.

SmileDirectClub offers refunds within 30 days after the aligners arrive. Anything after that is considered outside the company’s official refund policy and comes with the nondisclosure provision, which it said it began using in 2016.

If your mouth does get fucked up by a SmileDirect product, you can’t tell anyone about it. Refunds past the 30-day mark are handed out with restrictions that help the company keep its online reputation as squeaky-clean as possible.

When some… customers requested refunds, SmileDirectClub asked them to sign the confidentiality provision. The agreement prohibited the customers from telling anyone about the refund and required them to delete negative social-media comments and reviews, according to a copy viewed by The New York Times.

If this is a nondisparagement clause, it’s illegal. The Consumer Review Fairness Act that went into effect in 2017 outlaws exactly what’s happening here.

[T]he Act makes it illegal for a company to use a contract provision that:

1. bars or restricts the ability of a person who is a party to that contract to review a company’s products, services, or conduct;

2. imposes a penalty or fee against someone who gives a review; or

3. requires people to give up their intellectual property rights in the content of their reviews.

Hmm. Here’s a customer complaint filed with the FDA:

I requested a refund and i was told that i have to sign a release form to be refunded. The terms of that release form include that i cannot even mention the existence of the form, seek any additional compensation for damages and (this is most concerning) i could not share any information about my negative experience publicly. And if i had already posted anything in social media about my experience, i had to remove it before they would refund me.

Looks pretty illegal to me. SmileDirectClub’s critics may only be a small percentage of its customers, but they cannot legally be silenced this way. Tying refunds to gag orders is the worst form of customer service. It’s pretty much just fine print extortion. SmileDirect wants unsatisfied customers to keep their fucked-up mouths shut. And now, with some nationwide coverage, it’s going to realize turning refund payments into hush money does nothing to keep your reputation intact.

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Companies: smiledirectclub

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Comments on “SmileDirectClub Is Trying To Silence Criticism By Tying Refunds To Non-Disparagement Agreements”

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That One Guy (profile) says:

Re: Re:

Tempting, but the problem is that whether you win or lose a lawsuit(and given a law that pretty clearly says such clauses are illegal I don’t see any real way for the company to win any lawsuit they tried) it still costs, a lot, and I imagine the kind of people who tried to go with a cheaper way to fix their teeth likely don’t have the money it would take to defend themselves in court.

bhull242 (profile) says:

Re: Re: Re: Re:

I don’t disagree, and I absolutely don’t condone any aspect of anything SmileDirectClub has done, but I still feel it worth mentioning that there are a lot of people who simply can’t afford to not “go cheap on your teeth”. A lot of healthcare plans don’t cover dental at all, and even then it’s not guaranteed to cover orthodontic costs. For some, getting all the recommended treatments and such through recommended means is not an option.

Still, there is a definite difference between going cheap on toothbrushes, toothpaste, and removing bad teeth, as opposed to going cheap on teeth-straightening devices. With the former, even cheap toothbrushes and toothpaste can do a pretty decent job of covering most dental health issues (potentially making a dental check-up not strictly necessary outside of an emergency), and tooth removal can be done by a nonprofessional without seriously damaging the rest of your teeth (though it’s generally much riskier and definitely a lot more painful). With the latter, though, you need a lot more precision and detail in every aspect to get a decent result.

SirWired says:

Pinky-swear you've gotten an exam and x-rays?

Good Lord, this place is awful! A regular exam and x-rays looks for cavities and gum disease, and obtains bitewings and maybe a panorex.

Proper orthodontic records, which ensure your mouth is ready for orthodontic treatment, able to sustain the stresses, and that you don’t have any facial deformities complicating the picture, require the following:

  • A series of particular face and mouth photos (some of these are taken with lip-spreaders and/or a mirror practically jammed down your throat.)

  • mm-precise measurements of particular reference points.

  • A pair of cephalograms (head x-rays) so measurements can be taken of the skeletal anatomy of your face.

None of that is part of a regular exam and x-rays, and all of it is important to make sure you are receiving the proper treatment. You can sort-of correct many cosmetic issues with SmileDirect’s method, but the final result may not be healthy or stable. (e.g. You’ll look pretty for a bit, and then suffer from tipping or gum/bone recession when the angles are all off.)

bhull242 (profile) says:

I admit, I’m no dentist, dental hygienist, doctor, medical expert, orthodontist, or whatever, but I’m pretty sure that any decent teeth-straightening device would need a lot more information to properly construct than a mold of one’s teeth could possibly provide. Stuff like information on the roots, how firmly rooted each tooth is, the health of the gums, tooth-brushing habits, info on the skull and jawbone, dental history, strength of the enamel, etc. These are the sorts of things that can only be determined through an x-ray or in-person examination.

And you’d need all this information because there are a lot of factors that go into how teeth grow and how they’d respond to a teeth-straightening device. If it’s done even slightly wrong (like by millimeters or a fraction of a degree), then it can seriously ruin your jaw or teeth, possibly irreparably.

My dentist warned me about this when deciding whether to go for it. He explained a lot about what the entire process (from appointment to examination to having to use the device to removal) would entail. It was ultimately decided that the costs (primarily monetary to be honest) weren’t really worth it as my teeth, while definitely crooked, weren’t all that bad. I may be misremembering some things, but I do know that there was a lot of stuff involved that no mold of one’s teeth could possibly provide.

And that’s not factoring in how accurate a mold would actually be. Even if it’s pretty darn accurate, I’m skeptical that it would be sufficiently accurate for designing a teeth-straightening device given just how precise everything needs to be.

Toom1275 (profile) says:

No x-ray or dental examination is performed but customers are required to sign a consent form saying that they did have one performed before purchasing SmileDirectClub’s dental device. This removes some of the company’s liability. If the customer didn’t actually get this done, it can’t hold SmileDirect responsible for problems that might have been caught with a real exam.

A Smile Direct Club just played on the TV.
It quite explicitly stated "No office visits" right there in the ad.

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