Ad description

A press ad, a leaflet, a website in May 2011, and a TV ad in June 2011, for Colgate Sensitive Pro-Relief:

a. The press ad had the headline "SWITCH TO THE MOST EFFECTIVE SENSITIVE TOOTHPASTE" above a picture of the product, a toothbrush and a glass of ice. Text underneath the picture stated "Proven instant* relief and superior† lasting protection". Footnoted text stated "*apply directly with fingertip for one minute †vs. potassium and strontium based toothpastes".

b. The front page of the leaflet stated "INSTANT* LASTING SUPERIOR† PAIN RELIEF ... CHANGE TO THE MOST EFFECTIVE SENSITIVE TOOTHPASTE". Asterisked text stated "*When directly applied to each sensitive tooth for one minute. †Vs Potassium and Strontium based sensitive toothpastes". Further text inside the leaflet, under the heading "INTRODUCING COLGATE SENSITIVE PRO-RELIEF" stated "Colgate Sensitive Pro-Relief is the first and only toothpaste with Pro-Argin technology. This revolutionary formula is clinically proven to provide instant*, lasting and superior relief from the pain of sensitivity by blocking the channels to the nerve. With regular use it builds a long-lasting protective barrier which acts like a seal against sensitivity, leaving you to enjoy life to the full!". Footnoted text stated "*When directly applied to each sensitive tooth for one minute".

The final page of the leaflet stated "WHY DOES IT WORK BETTER? Unlike most other toothpastes, Colgate Sensitive Pro-Relief instantly blocks the channels to the nerve to prevent sensitivity before it starts". Underneath was a diagram of the nerve in a tooth and comparative diagrams of how Colgate Sensitive Pro-Relief and other toothpastes worked. Text above each diagram stated "Colgate Sensitive Pro-Relief BLOCKS channels to the nerve ... Most Sensitive Toothpastes2 NUMB the nerve". Claims in a tick-box comparison underneath stated "Instant relief 1; Superior lasting relief; Seals channels to the nerve ... RESULT: THE MOST EFFECTIVE RELIEF FOR SENSITIVITY!" with ticks indicating that Colgate Pro-Relief provided those benefits and crosses indicating that most sensitive toothpastes did not. Footnoted text stated "1 When directly applied to the sensitive tooth for one minute. 2 Potassium variants which numb the nerve".

c. The website featured a tick-box comparison between "Colgate Sensitive Pro-Relief" and "Most Sensitive Toothpastes2" with the claims "Instant relief1" and "Superior lasting relief". Ticks indicated that Colgate Pro-Relief had provided those benefits and empty boxes indicated that most other sensitive toothpastes did not. Footnoted text stated "1 When directly applied on the sensitive tooth for 1 minute 2. Potassium and Strontium based sensitive toothpastes".

d. The TV ad featured a presenter who stated "We're talking to people who've switched to Colgate Sensitive Pro-Relief". Callum, the,first consumer interviewed, stated, "... it's a much more effective toothpaste. It worked straightaway." On-screen text stated "Callum, switched from another potassium-based sensitive toothpaste". The ad then showed an animation of the nerves inside a tooth as the presenter explained, "That's because unlike most other sensitive toothpastes, the unique Pro-Argin formula instantly blocks the open channels to the nerve." Fiona, the second consumer, stated, "Yes, I can absolutely say it has changed my life. Definitely." She was then shown biting into an ice-cube and said "Both sides ... Perfect!" On-screen text stated "Superior lasting protection vs. potassium based toothpastes". The presenter's voice-over at the end stated, "Switch to Colgate Sensitive Pro-Relief. Proven instant relief and superior lasting protection" as on-screen text stated "Instant relief and superior lasting sensitivity protection".  

Issue

GlaxoSmithKline plc challenged whether:

1. the claims in ads (a) and (b) that Colgate Sensitive Pro-Relief was "the most effective sensitive toothpaste", in ad (b) that the product provided "the most effective relief for sensitivity" and in ad (d) that the product was "a much more effective toothpaste" were misleading and could be substantiated;

2. the claims "superior lasting protection" in ad (a), "superior lasting relief" in ad (c) and "superior lasting sensitivity protection" and "superior long lasting protection" in ad (d) were misleading and could be substantiated;

3. the claim "superior pain relief" in ad (b) was misleading and could be substantiated;

4. the tick-box comparison in ad (b), and the comparison in ad (d) with potassium based toothpastes, which they believed would not be easily understood by consumers, gave the misleading impression that the comparison was with all other sensitive toothpastes, when that was not the case;

5. the tick-box comparison in ad (b) misleadingly implied that Colgate Sensitive Pro-Relief was the only sensitive toothpaste that worked by sealing the channels to the nerves, because their Sensodyne Rapid Relief  toothpaste worked in the same way;

6. the tick-box comparison in ad (c) misleadingly implied that Colgate Sensitive Pro-Relief was the only sensitive toothpaste to provide instant relief; and

7. the on-screen text "switched from another potassium-based toothpaste" in relation to the consumer 'Callum' in ad (d) misleadingly implied that Colgate Sensitive Pro-Relief was a potassium-based toothpaste when that was not the case.

Response

Colgate-Palmolive (UK) Ltd (Colgate) explained that the majority of toothpastes marketed to consumers in the UK for the relief of sensitive teeth used potassium salt as the active ingredient, but that the proprietary active ingredient in Colgate Sensitive Pro-Relief (CSPR) was arginine. They also explained that the active ingredients in GSK's Sensodyne Rapid Relief (SRR) and Senosodyne Repair and Protect (SRP) were strontium acetate and Novamin respectively. Colgate said a third-party company also produced a toothpaste for sensitivity that used a combination of calcium sulphate, di-potassium phosphate and baking soda. They said there were a number of other minor house brand products also on the market, which they believed were likely to be traditional potassium-based toothpastes.

Colgate said the prevailing approach in potassium-based consumer-use sensitive toothpastes was to numb the intradentine nerve thereby desensitising the nerve to pain, rather than treating the cause of pain, and required at least two weeks to provide relief. In contrast, CSPR treated the cause of pain by plugging open dentine tubules. Colgate said with direct application CSPR instantly relieved sensitivity and provided lasting relief with regular brushing.

1. Colgate explained that the claims were supported by their evidence relating to CSPR's efficacy in terms of its superior instant and long lasting relief.  They provided a report from their expert and clinical studies that they said showed that the new technology in CSPR provided clinically meaningful instant relief on direct application, and performed better than potassium-based toothpastes in that area. They referred to their response to point 2 below regarding long lasting relief. Colgate said they believed the available evidence did not demonstrate that SRR provided instant relief, but that even if it was accepted that SRR did achieve that result they believed CSPR performed better in the clinical trials. Colgate said no published study had investigated the potential of SRP or the third-party toothpaste to deliver instant relief after direct application, and asserted that, because the makers of those products did not claim that those products provided instant relief, they were therefore entitled to assume that those products did not provide that benefit.

Clearcast said the claim in ad (d) was discussed at length with their consultant. They said the evidence provided by Colgate showed that CSPR was more effective compared to potassium-based toothpastes, and they had therefore agreed that a disclaimer should be included to make that clear.

2. Colgate said the claims "superior lasting protection" in ad (a) and "superior lasting relief" in ad (c) were made in relation to potassium-based toothpastes and SRR only, and that the claims "superior lasting sensitivity protection" and "superior long lasting protection" in ad (d) referred only to potassium-based toothpastes. Colgate said they believed those claims were clearly qualified in all the ads; the footnoted text in ads (a) and (c) stated that the basis of the comparison was with potassium- and strontium-based toothpastes, and on-screen text in the TV ad (d) made clear that the superiority claims were "v potassium based toothpastes". Colgate pointed out that the comparative claims in the ads took into account the vast majority of the UK consumer-use sensitive toothpaste market, and they did not need to take into the account the remaining minority share products. Colgate said the clinical trials submitted and outlined in point 1 above also demonstrated that CSPR offered superior lasting relief compared to both SRR and potassium-based toothpastes.

Colgate maintained that, unlike purchasers of general-use toothpaste, consumers who suffered dentine hypersensitivity and purchased sensitive toothpastes were more likely to seek out information on, and be more aware of, the active ingredients in those toothpastes and how they worked. They believed those consumers would therefore understand the reference to the different technologies in the qualifying text in the ads. Colgate said they had consistently explained the technology behind CSPR to consumers in marketing campaigns and that consumers could therefore be expected to have a good understanding of how the product worked, and how it compared to other sensitive toothpaste technologies.

Clearcast said, on the basis of the evidence provided, they agreed that the claim was acceptable as long as it was made clear that it was the sensitivity element that was long lasting. The evidence provided had shown that to be the case.

3. Colgate said the claim related to both the instant and lasting relief provided by CSPR, and referred to the clinical evidence provided in response to points 1 and 2 above. Colgate said the claim was clearly qualified in small print as a comparison with potassium- and strontium-based toothpastes only. They said that qualification would be noted by the average consumer of sensitive toothpaste, who was especially likely to focus on the active ingredient of the product. They said the comparison took into account over 87% of the UK sensitive toothpaste market.

4. Colgate pointed out that the relevant part of the tick box in ad (b) was headed "most sensitive toothpastes" and that further text stated "unlike most other toothpastes". They believed it was clear that the comparison did not therefore refer to all other sensitive toothpastes on the market; the footnoted text that referred to "potassium variants" helped to make that clear. Colgate explained that both they and GSK manufactured potassium-based toothpastes, and the purpose of the tick box was therefore to educate consumers regarding the advancement in technology that CSPR represented, versus the predominant potassium-based approach to date.

Colgate said the voice-over and graphics in ad (d) made clear that CSPR worked by blocking channels to the nerve "unlike most other sensitive toothpastes", and they believed consumers would understand the ad to be explaining the benefits of CSPR against most, but not all, sensitive toothpastes. They said the ad therefore drew a meaningful and relevant comparison between the key sensitivity technologies available for consumer use in the UK.

Clearcast said the disclaimer "vs potassium and strontium based toothpastes” made it clear which products were being compared. They said it would be straightforward for consumers to read the ingredients on the back of the product pack to see which ingredients each produce contained.

5. Colgate said, as already explained, they believed that the text above the tick box in ad (b) made clear that Colgate was being compared with "most other toothpastes" only. Colgate said the 'cross' next to the claim "Seals channels to the nerve" in the column headed "Most Sensitive Toothpastes" was clearly qualified as relating to potassium-based toothpastes only. They believed that consumers would understand that the ad compared CSPR to potassium variants only, rather than all other sensitivity technologies. They did not believe the ad implied that only CSPR worked by blocking channels to the nerve.

6. Colgate said they believed the tick box and qualifying text on their website ad (c) made clear that the comparison was between CSPR and potassium- and strontium-based toothpastes only. They said, in any event, the comparison was not misleading because their clinical trials showed that CSPR was the only consumer use sensitive toothpaste to provide instant relief from dentine hypersensitivity.

7. Colgate said the overall message of ad (d) was that CSPR's Pro-Argin technology was novel and different from existing sensitive toothpastes, and that the ad focused on demonstrating the mode of action of CSPR. They said any suggestion that CSPR was a potassium-based toothpaste would disregard the core message of the ad and their entire marketing campaign. Colgate said the on-screen text during 'Callum's' interview was intended to explain that 'Callum' had switched from another sensitive toothpaste that was potassium-based. Colgate said, in the context of the ad as a whole, consumers were extremely unlikely to misinterpret the on-screen text relating to 'Callum' to mean that CSPR was a potassium-based toothpaste.

Clearcast said they agreed with Colgate's argument that consumers would interpret the ad to mean that Callum had switched to CSPR from a sensitive toothpaste that was potassium based.

Assessment

1., 2. & 3. Upheld

The ASA noted that the evidence provided by Colgate showed that CSPR did provide instant relief when the product was directly applied, and massaged for one minute, to sensitive teeth. We considered that that was an appropriate measure of instant relief from dentine sensitivity, and that it was reasonable of Colgate to assess the product in that way, as long as the basis for the claim was made clear in the ad. We noted that small print or on-screen text in all of the ads clarified the "instant" claims with reference to the direct application of the product to each sensitive tooth for one minute. We also noted that the evidence demonstrated that CSPR provided long-lasting relief from sensitivity over two, four and eight weeks.

We noted from the comparative evidence provided that CSPR performed better when assessed for both instant and long-lasting relief when tested against potassium and strontium (SRR) variants, and we therefore considered that Colgate had demonstrated that CSPR was a more effective sensitive toothpaste than traditional potassium-based sensitive toothpastes and SRR.

However, we considered that the claims that CSPR was the "most effective" toothpaste and provided "superior" lasting relief, pain relief and protection were strong, absolute claims that implied that CSPR had been tested against all other sensitive toothpastes on the UK market, and would be interpreted by consumers in that way. We understood, however, that that was not the case and that CSPR had not been tested against SRP or the third party product in particular. We understood that, like CSPR, both SRP and the third-party product also worked by blocking open dentine tubules thereby treating the cause of sensitivity, albeit by using different active ingredients. Whilst we noted Colgate's assertion that because SRP and the third-party product did not claim to provide instant or long-lasting relief those products must not have those functions, we considered that because Colgate were making absolute comparative claims, and because SRP and the third-party product utilised a similar technology to CSRP, Colgate should have held comparative evidence for those products in order to support the claims.

Notwithstanding the above, we noted that ads (a), (b) and (c) contained qualifying small print that stated that the comparative claims related to potassium- and strontium-based sensitive toothpastes, and that ad (d) contained on-screen text that stated that the comparison was with potassium-based toothpastes only. However, we considered that consumers were unlikely to be aware of the different technologies or active ingredients used by different sensitive toothpaste products on the UK market, and were therefore also unlikely to appreciate from those qualifications alone that the comparisons did not relate to all sensitive toothpastes available. We therefore considered that the qualifying text in all of the ads was ambiguous and could cause confusion for consumers.

For those reasons we concluded that the claims had not been substantiated and were misleading.

On points 1, 2 and 3, ads (a), (b) and (c) breached CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising),  3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.  (Substantiation) and  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  (Comparisons with identifiable competitors).

On points 1 and 2, ad (d) breached BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.2 3.2 Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
 (Misleading advertising),  3.9 3.9 Broadcasters must hold documentary evidence to prove claims that the audience is likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.  (Substantiation) and  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  (Comparisons with identifiable competitors).

4. Upheld

As explained above, we considered that consumers were unlikely to be aware of the different sensitive toothpaste technologies or ingredients on the market, and were also unlikely to understand from the on-screen text in ad (d) and qualifying text in ad (b) alone that the comparisons did not include all sensitive toothpastes on the market. We considered consumers could therefore understand the comparison with potassium variants in ad (d) and in the tick-box in ad (b) to relate to all sensitive toothpastes, when that was not the case. We considered that that was reinforced by the overall impression created by both ads that CSPR was a new and unique product that worked differently to other products for sensitive teeth, with which it was being compared.

We noted that explanatory text above the tick box in ad (b) stated "Unlike most other toothpastes, Colgate Sensitive Pro-Relief instantly blocks channels to the nerve to prevent sensitivity before it starts" and that the relevant column in the box was headed "Most Sensitive Toothpastes". However, we considered that in the context of the ad's emphasis on CSPR's "revolutionary formula" the tick box could be understood by consumers to mean that most sensitive toothpastes, with the exception being CSPR, were potassium variants that worked by numbing the nerve. We therefore considered that the comparisons with potassium-based toothpastes in the tick box in ad (b) and in ad (d) were ambiguous and could be interpreted to imply a comparison with all other sensitive toothpastes, when that was not the case, and concluded that ads (b) and (d) were misleading on those grounds.

On this point ad, ad (b) breached CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising) and  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  (Comparisons with identifiable competitors).

On this point, ad (d) breached BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.2 3.2 Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
 (Misleading advertising) and  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  (Comparisons with identifiable competitors).

5. Upheld

As explained in point 4 above, we considered that the overall impression of ad (b) was that Colgate was a novel and different product to other sensitive toothpastes on the market. We also considered that the claim "Colgate Sensitive Pro-Relief is the first and only toothpaste with Pro-Argin technology. This revolutionary formula is clinically proven to provide instant, lasting and superior relief ... by blocking channels to the nerve" in particular implied that CSPR used a unique technology and was thereby new and innovative in blocking channels to the nerve. In that context, we considered that consumers were therefore likely to understand the tick box to mean that CSPR was the only sensitive toothpaste that worked by blocking channels to the nerve, and that other sensitive toothpastes worked by numbing the nerve. Because we understood that was not the case, we concluded that the tick box was misleading.

On this point ad, ad (b) breached CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising) and  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  (Comparisons with identifiable competitors).

6. Upheld

As explained above, we considered that consumers were unlikely to be aware of the different sensitive toothpaste technologies, or active ingredients used by the different sensitive toothpaste products, on the UK market, and were therefore also unlikely to appreciate from the qualifying text "Potassium and strontium based sensitive toothpastes" in ad (c) alone that the tick-box comparison did not relate to all sensitive toothpastes currently available. We considered that the tick-box could therefore give the impression that CSPR was the only sensitive toothpaste available that provided instant relief. Notwithstanding that, we noted from the clinical evidence provided that the strontium based toothpaste (SRR) included in the tick-box comparison also provided instant relief when applied directly to sensitive teeth and massaged for 1 minute. Because of that, and because we considered that the tick-box implied that CSPR was being compared with all other sensitive toothpastes when that was not the case, we concluded that ad (c) was misleading.

On this point, ad (c) breached CAP Code (Edition 12) rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising),  3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation.  (Substantiation) and  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  (Comparisons with identifiable competitors).

7. Upheld

We considered that the overall impression of ad (d) was that CSPR was a new product and that its "unique Pro-Argin formula" was different to other sensitive toothpastes, but we did not consider that consumers would be sufficiently familiar with sensitive toothpaste technology to understand from the ad alone that CSPR's Pro-Argin technology utilised a different active ingredient than other sensitive toothpastes. We noted that the on-screen text during the interview with 'Callum' stated "switched from another potassium-based sensitive toothpaste" and we considered that consumers would understand that to mean that CSPR was also potassium based, and that Callum had therefore switched from one potassium variant sensitive toothpaste to another. We considered that that was reinforced by the on-screen text during the interview with 'Fiona', which stated "switched from another sensitive toothpaste" without specifying the relevant active ingredient. Because we understood that CSPR was not potassium based, we concluded that the on-screen text in ad (d) was misleading.

On this point, ad (d) breached BCAP Code rules  3.1 3.1 Advertisements must not materially mislead or be likely to do so.  and  3.2 3.2 Advertisements must not mislead consumers by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that consumers need in context to make informed decisions about whether or how to buy a product or service. Whether the omission or presentation of material information is likely to mislead consumers depends on the context, the medium and, if the medium of the advertisement is constrained by time or space, the measures that the advertiser takes to make that information available to consumers by other means.
 (Misleading advertising) and  3.33 3.33 Advertisements that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, consumers about either the advertised product or service or the competing product or service.  (Comparisons with identifiable competitors).

Action

Ads (a), (b) and (c) must not appear again in their current form. Ad (d) must not be broadcast again in its current form. We told Colgate not to imply that CSPR was the only sensitive toothpaste to work by blocking the channels to the nerve or to provide instant relief, or that it was a potassium-based toothpaste. We also told Colgate not to imply that CSPR had been compared with all other sensitive toothpastes on the UK market, when that was not the case, and to make clear in text qualifying comparative claims which products were included or excluded from the comparison.

BCAP Code

3.1     3.2     3.33     3.9    

CAP Code (Edition 12)

3.1     3.3     3.33     3.7    


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