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.
Although some toothpastes and home-use kits can legitimately claim to “whiten teeth”, the Copy Advice team is increasingly coming across tooth whitening being offered by beauticians and clinics. Tooth whitening carried out by non-dental professionals could be illegal. Clinics not employing dentists or dental hygienists and dental therapists with the necessary skills, should check with the GDC.
Marketers making product performance claims should ensure they are supported by appropriate evidence and that they are relevant and meaningful to the consumer. The ASA upheld a complaint about an ad that claimed the product could whiten teeth by three shades because the advertiser was unable to substantiate the claim (Church & Dwight UK Ltd, 17 October 2012). Another marketer stated, "Teeth whitening kit. Instant results in up to eight shades whiter." However, the ASA considered that the methodology of the study and consequently, the significance and reliability of its results were not adequate to support the teeth whitening claims. Among other things, the ASA was concerned that the study was not blinded and no control group existed (Fdd International Ltd, 11 June 2014).
More generally, the ASA upheld a complaint about an ad for ‘Sensodyne True White’ because it had not seen evidence that the product had a perceptibly greater whitening effect than the brand’s ‘non-whitening’ toothpastes. While the ad did not feature any explicit comparative claims along these lines, the ASA Council considered that consumers were likely to understand from the brand name and accompanying ‘whitening’ claims, in the context of toothpastes designed for sensitive teeth and other toothpastes on the same website that did not feature whitening claims, that the product was particularly effective at whitening teeth and would infer that the toothpaste was able to whiten teeth to a perceptibly greater extent than Sensodyne toothpastes that were not marketed as ‘whitening’ (GlaxoSmithKline Consumer Healthcare (UK) Trading Ltd, 28 March 2018). The ASA will always assess ads on a case-by-case basis, and it may be possible for an ad for whitening toothpaste to not convey such an interpretation to consumers. However, this ruling suggests that the ASA Council may be likely to regard advertisements for such products to contain an implied claim that the toothpaste will have a perceptibly greater whitening effect than the same brand's non whitening toothpastes. Marketers are, therefore, best advised that the ASA Council may expect to see evidence that shows that the whitening efficacy of a toothpaste claimed to be ‘whitening’ is perceptibly greater than the brand’s ‘non-whitening’ counterparts. In the absence of this, even general ‘whitening’ claims – including those in the product name - could risk of being found in breach of the Code.
Marketers should be able to show that whiter teeth are the result of the product and not digital manipulation (Procter & Gamble Ltd, 20 November 2013, Procter & Gamble Ltd, 5 December 2012). See the Help Note on the use of production techniques in cosmetics advertising which sets out the principles which marketers should consider when creating marketing material in relation to the application of pre and post-production techniques.
The ASA ruled against one ad which stated, “... removes stains in just 1 minute, with over 90% of staining removed during a 5 minute period ... A recent study conducted at Bristol University Dental School proved that Beverly Hills Formula whitening toothpaste removes stains in just 1 minute …” because the advertiser was unable to provide robust scientific evidence to prove that the product could remove stains within this time frame, including how the removal of stains had been measured. The ASA also considered that the ad misleadingly implied that tests had been conducted on all of their products, which was not the case (Purity Laboratories Ltd, 10 October 2012).
An ad should not imply that a whitening treatment involves lasers or that a procedure is used by dentists when it is not (SunsetTeethWhitening.co.uk, 19 October 2011, AllWhite3000 Ltd, 22 June 2011). See Lasers: General
Marketers promoting savings claims for tooth whitening services should be able to provide evidence that their service was sold at the “was” price (Laser Cosmetics Ltd, 12 June 2013). Evidence might consist of sales invoices for example, which demonstrates that the treatment was previously sold at the stated price, before a discount was applied (MyCityDeal Ltd, 26 June 2013, AllWhite3000 Ltd, 22 June 2011).
Marketers should be familiar with the Department for Business Innovation & Skills (BIS) Pricing Practices Guide, because the ASA and CAP will take this into account when reviewing price statements.