Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Whilst most toothpastes are generally classed as cosmetic, if the ad makes claims that the toothpaste can treat sensitive teeth, or help with bleeding gums etc., the product may be classed as a medicine, or a medical device, depending on the mode of action. The CAP Code states that medicines must have a licence from the MHRA before they are marketed, and any marcoms for medicines must conform with the licence and the product’s summary of product characteristics. Similarly, any medical devices should be appropriately certified.
Any advertiser who is unsure about the classification of their toothpaste product is encouraged in the first instance to contact the MHRA, even if they think their product is likely cosmetic. You can read more about medicinal claims here and medical devices here .
Do you need a licence from the MHRA?
This will depend on the claims that are made in the ad. As above, claims that a toothpaste is designed for sensitive teeth, or can reduce or aid “sensitivity” are likely to be considered medicinal, or may render the product a medical device. Marketers should speak to the MHRA prior to making any claims in their ads.
In 2018, the ASA investigated an ad for Oral B Gum and Enamel Repair toothpaste. Before assessing the claims made in the actual ad, the ASA had to decide whether the product was medicinal. Though the advertiser stated the toothpaste was purely cosmetic (and therefore did not need a licence), the ASA concluded that the product was claiming to treat an adverse condition (damaged enamel), and therefore they required a licence to make medicinal claims (Procter & Gamble (Health & Beauty Care) Ltd, 4 July 2018).
Health professional and celebrities
Rule 12.18 states that marketers must not use health professionals or celebrities to endorse medicines. Dentists can be used to endorse cosmetic products but should not be used in ads for toothpastes that are medicinal by either function or presentation.
See also Celebrities and Health Professionals.
Claims of efficacy
Along with holding an appropriate licence if required, marketers should also ensure that they hold robust evidence for all claims of efficacy, or any claims that the product is suitable for those with sensitive teeth.
In 2018, the ASA investigated a TV ad for Colgate Sensitive Pro-Relief toothpaste, which featured the claim “repairs teeth instantly”. Though the advertiser stated that the toothpaste worked by delivering a surface coating on the enamel surface (and provided clinical studies to this effect), the ASA concluded that the overall impression from the ad was that the product had a restorative effect on sensitive teeth, which was not the case, and the ad was therefore misleading (Colgate Palmolive UK Ltd, 19 December 2018).
Marketers looking to make a comparison about their toothpaste products vs their competitor’s products must hold robust evidence, and ensure their comparisons are fair, honest and verifiable. See Comparisons: General for more information.