Summary of Council decision:
Four points were investigated, of which one was Upheld and three Not upheld.
A website ad at www.colgate.co.uk, for the Colgate Max White One Optic toothpaste, seen in August 2014, included hyperlinked text which stated “DISCOVER HOW TO GET AN INSTANTLY WHITER SMILE*”. Small text underneath stated “*temporary visual effect provided by clinically proven optic brighteners”. The hyperlinked text took website visitors to a web page which included a video titled “HOW DOES IT WORK?”. The video’s voice-over stated, “This revolutionary new toothpaste … contains … optic brighteners to give you instantly visible whiter teeth ... The use of optic brighteners to give your teeth an instantly whiter look. Stains on tooth enamel absorb blue rays of light meaning that the human eye cannot see all the colours necessary for teeth to appear white. Colgate Max White One Optic toothpaste contains optic brightener strips that disperse during brushing, turning the toothpaste foam blue. These blue particles in the foam adhere to the clean teeth and allow blue light to be reflected off the enamel, instantly making your teeth appear much whiter. … For instantly visible whiter teeth”. Small on-screen text displayed at the end of the ad stated “Temporary visible whitening effect provided by clinically proven optic brightness”.
Procter & Gamble UK challenged whether the following claims were misleading and could be substantiated, because they believed they exaggerated the performance of the product:
1. “revolutionary new toothpaste”;
2. “INSTANTLY WHITER SMILE” and “an instantly whiter look”;
3. “much whiter”; and
4. “temporary visual effect provided by clinically proven optic brighteners”.
Colgate-Palmolive (UK) Ltd said the toothpaste was formulated to whiten teeth through three methods: removing surface stains; preventing surface stains; and depositing optic brighteners on the teeth to provide a temporary instant visual whitening effect. They provided five studies in support of the advertising claims. Three related to the effectiveness of the ingredient for stain removal, one related to the effectiveness of the ingredients for stain prevention, and one to the effectiveness of the ‘optic brighteners’.
1. Colgate-Palmolive said the toothpaste contained strips consisting of a blue pigment and an adhesive polymer, which during brushing became a blue foam that gave the effect of whiter teeth. Those ‘optical brightening’ strips made the product revolutionary and new.
Colgate-Palmolive said they had carried out extensive market research in 2014 which confirmed no other toothpaste on the market in the UK contained optic brightening strips such as theirs. They provided a spreadsheet which listed sales data covering all products marketed within the UK that referenced a whitening benefit, in the period up to the end of December 2013 (the advertised product was launched in February 2014). That list, of 277 products, included duplications due to the availability of different sizes of some products, and also included ‘multi-benefit’ toothpastes (e.g. for whitening and sensitivity) as well as specialist whitening products. Colgate-Palmolive said that consumers who wanted a specialist whitening toothpaste such as Max White One Optic would not consider a multi-benefit toothpaste as a comparable product and therefore the full list did not provide a meaningful representation of genuinely comparable, specialist whitening toothpastes. They had therefore decided to review the whitening claims made for only those products which were on sale through a certain major retailer which they said was the largest retailer of specialist whitening toothpastes in the UK.
That retailer sold 71 specialist whitening and multi-benefit whitening products. The spreadsheet listed the claims relating to the whitening aspects of those toothpastes which appeared either on-pack or on the retailer’s website. Colgate-Palmolive said the unit sales of those 71 products, plus the sales of their own other “non-instant” whitening products which were not stocked by that retailer, accounted for 96.1% of the whitening market in the UK. Additional research, carried out in July 2014, identified a further six toothpastes on the market. The spreadsheet listed claims in relation to five of those toothpastes. Colgate-Palmolive said all the identified claims related to whitening in general, not optical brightening specifically.
Colgate-Palmolive considered that reviewing the labelling and advertising claims for the products was a sufficient basis on which to assess whether the products used similar whitening methods to that in Max White One Optic, as any other company using a similar technology utilising optic brighteners would reference that in their labelling and advertising. They said it was impossible for them to obtain complete and detailed ingredient lists for other products, as such information was proprietary and confidential, but they had nevertheless reviewed the ingredient lists of the comparator products and considered they did not contain sufficient levels of the key ingredients needed for optic brightening to provide a visual whitening effect.
Colgate-Palmolive said that, additionally, they had filed a patent application in December 2013 (published in July 2015) which was made to specifically protect the optic brightening component of the toothpaste. They considered that this demonstrated that the technology involved in stabilising blue pigment with a toothpaste, such that it could bond to teeth, was complex. They provided a copy of the application.
2. & 3. Colgate-Palmolive said the claims related to the optic brightening effect of the toothpaste. When the optical brightening strips dissolved during brushing the pigment bound to the teeth, which caused the whitening effect. The polymer increased the retention of the optic brightener on the teeth. They provided a study which compared the whitening effect of a formula which was substantially similar to Max White One Optic with a placebo toothpaste.
The study was an examiner-blinded, two-treatment crossover study, measured using two whiteness indices and a test methodology which Colgate-Palmolive said were industry-accepted for measuring tooth whiteness. Colgate-Palmolive provided copies of published studies which they said demonstrated that the indices and methodology used were well-accepted and a sufficiently robust means of measuring tooth whiteness. They said the study conducted on Max White One Optic found a statistically significant immediate whitening benefit of the Max White One Optic toothpaste when compared with a placebo control.
Colgate-Palmolive also provided results from a consumer research survey, in which 151 consumers used the product as their normal toothpaste for two weeks and who were then asked questions about the product. Colgate-Palmolive highlighted that 67% of those surveyed were satisfied with its whitening ability and 58% agreed that the product made their teeth visibly whiter.
4. Colgate-Palmolive said the claim “temporary visual effect provided by clinically proven optic brighteners” was included in their advertising to explain to consumers what was meant by their claims relating to instant whitening. They said the language was intended to help ensure that consumers would understand that the effect was a temporary, visual effect. They considered it also helped consumers to understand that the temporary visual effect was achieved using “clinically proven optic brighteners”. They said the phrase “clinically proven” was supported by the study referenced at Point 2.
1. Not upheld
The claim “revolutionary new toothpaste” appeared in the video, which described the stain removal effects of the high cleaning silica and the instant whitening effects of the optic brighteners in the toothpaste. The ASA considered that in the context of the ad, consumers would understand the claim to mean that the advertiser’s toothpaste used an “instant” whitening method which had not been used in a toothpaste available in the UK before; this method was the use of optic brighteners.
We noted Colgate-Palmolive had filed an application for a patent (which had subsequently been published) on the optic brightening element of the formulation, but considered that in itself did not demonstrate that Max White One Optic was the first toothpaste on the market in the UK which used optic brighteners.
We reviewed the market research. Colgate-Palmolive had listed whitening claims made in relation to 71 of the 277 whitening products on the market in the period up to December 2013, and in relation to five of the additional six products on the market by July 2014. We acknowledged that the inclusion of optical brighteners in a tooth whitening product would be a significant feature and as such it would be highlighted in its advertising and labelling. We therefore considered that reviewing claims in the advertising and labelling of the comparator products, in combination with a review of the ingredient lists, was a satisfactory method of demonstrating that those products did not use similar ‘instant whitening’ methods to that used in the advertised toothpaste. We noted that none of the claims for the 71 products on the market in December 2013 appeared to relate to “instant” whitening or to optical brighteners (or to similar claims), although we understood a product using a similar method of “instant” whitening as that used in Max White One Optic had been launched later. However, we considered the claim in the ad would be understood by consumers to mean only that Max White One Optic was the first toothpaste on the UK market to use such a method rather than that it was the only toothpaste on the UK market to use such a method.
We understood that the research Colgate-Palmolive had conducted on products sold through one major retailer, combined with sales of their own “non-instant” whitening products sold through other retailers, accounted for 96.1% of unit sales in the UK. While the research did not cover the entirety of the UK market, we understood that it covered all of the significant participants in the market that would be likely to have the resources available to develop, brand and market a new technology. In that context we considered the remaining 3.9% of unit sales which was unaccounted for by the research was unlikely to include any products which used an optical brightener. We therefore concluded that Colgate-Palmolive had provided adequate substantiation for the claim.
On that point, we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product. (Comparisons with Identifiable Competitors), but did not find it in breach.
2. & 4. Not upheld
We considered consumers would interpret the claims in the ad to mean that on each occasion of using the toothpaste their teeth would immediately appear noticeably whiter, although they would understand that was achieved through a temporary optical effect. We further considered that consumers would understand the claim that the optic brighteners were “clinically proven” to mean the “instant whitening” effects of those optic brighteners had been tested in a clinical study or studies and found to be effective.
Four of the studies related to the effectiveness of the toothpaste’s ingredients for stain removal and stain prevention, and related to the medium- to long-term whitening effects of the toothpaste, whereas the challenged claims all related to the “instant” whitening effect and “temporary visual” effect of the toothpaste. Colgate-Palmolive attributed those effects to the optic brighteners in the toothpaste rather than to the other aspects of the formulation. Colgate-Palmolive had provided one study which examined the instant whitening effects of the toothpaste. We took expert advice on that study, the additional studies which had been provided to support the indices and methodology used, and on the consumer research survey results.
With regard to the consumer research, we noted that the questions asked of the participants at the end of the trial were general questions about the whitening effects of the toothpaste and did not specifically relate to its “instant” whitening effects. We therefore considered the survey results did not support claims about the “instant” whitening effects of the toothpaste.
The study involved 80 subjects and had a crossover design, meaning that the subjects acted as their own controls. The subjects were randomly allocated to two groups: the first brushed first with the test paste and then, after a week’s ‘washout’ period, with the control paste; the second brushed first with the control paste then the test paste. Brushing was conducted under supervision, for a standardised time, using the subjects’ normal brushing technique. Images were taken, under standard conditions of lighting and distance, of the subjects’ teeth immediately before and after brushing. The images were then compared using the whitening indices.
We considered the study design and methodology were adequate to investigate the instant whitening effects of the toothpaste, and noted the results of the study showed a small but statistical difference in favour of the test toothpaste when compared with the control toothpaste. We considered the additional documents provided by Colgate-Palmolive, which evaluated the use of the whitening indices, provided a body of evidence confirming the validity of the use of those indices. We therefore understood that, while the magnitude of the improvement in whiteness as measured by the indices was small, the basis on which the index had been established meant that such small changes in whiteness would be noticeable to consumers. We considered the study results supported the claims that the product used “clinically proven optic brighteners” to achieve an “instant” whitening effect.
Notwithstanding that we considered the consumer research was not relevant to the “instant whitening” claims, we did consider the study provided by Colgate-Palmolive supported the claims that the product provided temporary instant whitening and that that effect was achieved with the use of “clinically proven optic brighteners”. We therefore concluded the ad did not breach the Code.
On those points, we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration), but did not find it in breach.
As referenced above, we considered consumers would interpret the claims that using the product would result in “instantly whiter” teeth to mean that their teeth would immediately appear noticeably whiter. We further considered that in the context in which it appeared the claim “much whiter” would also be understood to relate to the product’s instant whitening effect. However, we considered that consumers would interpret the claim “much whiter” as a stronger claim than the other claims – that teeth would appear very significantly whiter.
Notwithstanding that we considered the evidence showed that the instant whitening effect would be noticeable to consumers, because the magnitude of the improvement in whiteness as measured by the indices was small we considered the claim “much whiter” as it would be interpreted by consumers exaggerated the extent of the instant whitening effect. We concluded the claim “much whiter” was therefore misleading.
On this point, the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (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 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
The ad must not appear again in the form complained about. We told Colgate-Palmolive (UK) Ltd not to make claims which exaggerated the extent of the instant whitening effect of the toothpaste.