- Smile has been fined by President of UOKiK for the way it concluded contracts with consumers, failing to confirm them on a durable medium and using an abusive clause.
- To sign the contract immediately the company’s consultants used time pressure and manipulative techniques urging people.
- The entrepreneur is to pay a total fine of nearly PLN 3.5 million.
Dr. Smile Polska offered to correct malocclusion through the use of custom-made, personalized teeth straightening trays. Such products cannot be returned because they are customized for the individual consumer. The company’s customers, through its website, registered an appointment with one of its partner dental offices. There they performed a scan of the teeth, based on which Dr. Smile prepared a treatment plan and arranged a telephone consultation. The next phase of the entrepreneur’s activities raised concerns with UOKIK and was the focus of numerous complaints received by the Authority in 2023.
The signals focused on irregularities in the contracting process. They pointed out that the company’s consultant “conducts the conversation in such a way that the consumer doesn’t even know they are making a purchase, they just think they’re choosing a treatment plan and will have time to think about it,” furthermore, as another submission reads, “they exert time pressure and urge the purchase during the phone call, without giving the terms of withdrawal.”
President of UOKiK has conducted two proceedings against the entrepreneur – for violating the collective interests of consumers and using prohibited provisions in contracts. Both ended in decisions and fines – a total of nearly PLN 3.5 million.
Commitment talks
During phone calls, Dr Smile employees sent consumers a link to a bite correction offer including the course of treatment, expected results in the form of a 3D simulation, and financial terms (the cost of the service ranged from a few to several thousand zlotys). This was the first time the company shared this information. Despite the fact that consumers had no opportunity to review the offer beforehand, the consultants strongly urged them to conclude the contract immediately during the call. They exerted pressure and used manipulative techniques directing attention to the supposedly spectacular effects of using trays. When customers were still hesitant, they were tempted by high discounts of up to two thousand zlotys.
– Dr Smile offered a medical benefit that entailed a significant financial outlay, yet did not provide consumers with the necessary time to think about or carefully review the detailed terms of the contract. At no time during the conversation with the consultant was it stated that the consumer would not be able to withdraw from a decision with serious financial consequences. Consumers were also subjected to manipulations that influenced their choices, as confirmed by the complaints we received – says President of UOKiK,Tomasz Chróstny.
Requirement of a durable medium
Entrepreneurs are required to provide consumers with confirmation of a distance contract (e.g., by telephone) on a durable medium, i.e. one that cannot be tampered with. It can be a letter or a pdf file, for example. This should be done at the latest at the time of delivery of the goods or before the start of the service. Dr. Smile’s customers did not receive such confirmations. The requirement for a durable medium to ensure the unaltered form of documents was not met by the link to the treatment plan sent during the consultant’s call as the company could modify it. President of UOKiK challenged the practice in the decision issued.
Dr Smile was fined more than PLN 2.7 million (PLN 2,782,817) for actions violating the collective interests of consumers. The company has the right to appeal to the court.
Prohibited clauses
As President of UOKiK found, in some cases where consumers attempted to cancel the malocclusion correction contract before or during its execution, the company entered into a “Contract Cancellation Agreement” with them. There was a clause in the document according to which they waived all future claims, i.e. for medical errors, for example. This could result in an attempt by Dr. Smile to avoid liability for any defective performance of the service. The Authority found this provision to be prohibited. This means that it does not apply to consumers. President of UOKiK imposed a fine of more than PLN 670,000 (PLN 674,622) on the entrepreneur for using the prohibited contractual clause. The decision is not final.
