A Snapchat story ad for HiSmile, a teeth whitening product, seen on 26 March 2020, featured the claim “Whiter teeth in 10 minutes”, and a video of a woman placing a tooth-whitening device into her mouth. With the device still in her mouth, she began applying makeup to her face, before the video cut to a further scene in which she smiled with the device no longer in her mouth, revealing whiter teeth.
IssueThe complainant challenged whether the ad misleadingly exaggerated the capability or performance of the product.
HiSmile Pty Ltd said that the average consumer using Snapchat would reasonably infer from the ad that the product provided whiter teeth in 10 minutes. They believed there was no basis for finding the ad created an impression of instantaneous whitening. They provided: an independent cosmetic product safety report to demonstrate the product’s legality and safety as a cosmetic teeth whitening product; an independent clinical test which evaluated the tolerability and whitening cosmetic effect of the teeth whitening ingredient in their product; and an in vitro study, the purpose of which was to test the whitening effect of the ingredient in comparison to peroxide-based whitening agents on human teeth.
HiSmile also provided an in vitro laboratory report to verify the claim that the product produced “whiter teeth in 10 minutes” using bovine enamel. They provided further in vitro studies which they believed substantiated the use of bovine enamel in efficacy tests. They also highlighted the comments made by the independent testing house which stated that the testing method and the use of bovine enamel as the underlying test substance had been published in peer reviewed journals and that the data from the test was shown to broadly correlate with the data from clinical studies using the same whitening agents.
HiSmile provided a clinical test report which they said directly related to the performance of their product. They highlighted the conclusion of the report which they said denoted that their product produced “a visible and noticeable whitening effect … after one treatment”, which was 10 minutes in length.
The ASA considered consumers would understand from the claim “Whiter teeth in 10 minutes”, alongside the visuals in the ad of a woman placing the device in her mouth before applying makeup to her face and revealing whiter teeth to mean that the product would provide them with visibly whiter teeth after 10 minutes of use. We therefore expected HiSmile to hold sufficient evidence to demonstrate that was the case.
We assessed the evidence provided by HiSmile. One clinical trial was conducted on the active whitening ingredient in the product, but not conducted on the HiSmile product itself. It did not include a control group and the participants were evaluated after 15 and 30 days. Another clinical study was also conducted on a different product, and each participant was treated for a period of 20 minutes before results were captured. The evidence also included in vitro studies on bovine teeth. While we acknowledged that in vitro studies could form an important part of research in the area, the purpose of only one of those studies was to quantify the product’s whitening effect on teeth, and we did not consider it sufficient to demonstrate visible effects on human teeth.
One study measured the effects of the product on human teeth. The study was dated 19 June 2020 and therefore post-dated the ad. However, in any case, we were concerned that none of the evidence provided by HiSmile analysed the effects of the product on human participants, through trials which were blinded and used a control group. We considered that it might also have been beneficial for studies to contain feedback from participants recording whether they had noticed an improvement in their tooth colour, and if so to what extent. Given the above, we considered that the evidence provided by HiSmile was not adequate to demonstrate that the product was capable of whitening teeth within the timeframe stipulated in the ad. We therefore concluded that it misleadingly exaggerated the capability and performance of the product.
The ad breached CAP Code (Edition 12) rules
Marketing communications must not materially mislead or be likely to do so.
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.
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
Objective claims must be backed by evidence, if relevant consisting of trials conducted on people. Substantiation will be assessed on the basis of the available scientific knowledge.
Medicinal or medical claims and indications may be made for a medicinal product that is licensed by the MHRA, VMD or under the auspices of the EMA, or for a CE-marked medical device. A medicinal claim is a claim that a product or its constituent(s) can be used with a view to making a medical diagnosis or can treat or prevent disease, including an injury, ailment or adverse condition, whether of body or mind, in human beings.
Secondary medicinal claims made for cosmetic products as defined in the appropriate European legislation must be backed by evidence. These are limited to any preventative action of the product and may not include claims to treat disease. (Medicines, medical devices, health-related products and beauty products).
The ad must not appear again in the form complained of. We told HiSmile Pty Ltd to ensure they did not imply or give the impression that their product could offer whiter teeth in 10 minutes unless they held adequate evidence that this was the case.