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Summary of Corrective Statement Ortho-Tain filed a federal lawsuit against Vivos and related individuals/entities alleging that Ortho-Tain pediatric before-and-after case studies were used in marketing and educational materials and presented as if the results were achieved with Vivos products, including in courses/webinars associated with Benco. In an August 23, 2024 Memorandum Opinion and Order, the Court ruled that Ortho-Tain’s allegations were sufficient to proceed on a Lanham Act false advertising claim, finding that the presentations/webinars could constitute “commercial advertising or promotion” and that Ortho-Tain alleged with adequate specificity that the case studies were displayed with Vivos branding and attributed to Vivos. The Court did not tr
In 2020, Vivos Therapeutics, Inc. filed a lawsuit in Colorado, Case No. 20 cv 1637. In July of 2020, Ortho-Tain, Inc. filed a lawsuit against Vivos in Illinois, Case No. 20 cv 0301.
Vivos and Ortho-Tain have agreed to settle and dismiss their respective lawsuits and, as part of the settlement, have agreed to issue this joint, Corrective Statement.
Vivos believes it made reasonable attempts to make proper disclaimers and disclosures in its continuing educational programs stating, in effect, that the patient cases shown had been treated with a variety of oral appliances from several different manufacturers, including naming the product companies. Ortho-Tain disagrees and claimed that Vivos failed to make proper attribution for certain cases being treated with Ortho-Tain products and further failed to give proper credit to Ortho-Tain’s founder, Dr. Earl Bergersen on a single specific handwritten drawing.
Between the latter part of 2019 and into 2021, Vivos’ continuing educational programs included the display of certain before-and-after-treatment photographs of select pediatric dental patients. Such continuing educational programs were entitled “Learn How the Vivos System Induces the Remodeling of Human Airway Tissues” and “2020 Wellness Summit” (the “Continuing Ed programs”). A Vivos “Patient Education Video” (PEV) that has been available from 2019 through the present that included images of pediatric dental patients along with a single handwritten drawing on pediatric craniofacial growth and development. Some of the names of children whose photographs were included in the Continuing Ed programs and PEV were: Isaac, Nicholas, Hunter, Paige, Michael, Allie, Emma, Ava, Mattthew, Ella and Ian. None of the aforementioned children had been treated with a Vivos appliance.
Vivos has agreed to stop using the photographs demonstrating those pediatric outcomes.
Some, but not all, of the children depicted in the Continuing Ed programs and the PEV had used oral appliances supplied by Ortho- Tain, Inc.
