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.
In general, toothpastes are considered to be cosmetics, but if they are marketed in a way to treat or prevent “sensitive” teeth, or if any of the ingredients within the product could render it medicinal, marketers should ensure that the product has a marketing authorisation from the MHRA and that the claims made comply with that licence. Marketers should be aware that some claims may also be considered medicinal through context (see below). For more information on medicines and licences, visit the MHRA website. For more advertising guidance on sensitive toothpastes specifically, see Dental: Sensitive Teeth.
Evidence
Marketers looking to make any claims of efficacy or other objective claims about their toothpaste products should ensure that they hold robust evidence. In 2018, the ASA upheld a competitor complaint about a Sensodyne True White ad which implied that the product was particularly effective at whitening, but the advertisers had no evidence that it whitened more than their normal toothpaste range (GlaxoSmithKline Consumer Healthcare (UK) Trading Ltd, 28 March 2018).
Whitening toothpaste
Although some toothpastes and home-use kits can legitimately claim to “whiten teeth”, CAP is increasingly coming across tooth whitening being offered by beauticians and clinics. We understand from the General Dental Council (GDC) that 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. For further advice on 'whitening' toothpastes and other teeth whitening products and services, see also Dental: Teeth whitening.
Medicinal claims
Marketers should also be aware that some claims may be interpreted as medicinal claims. Firstly, if an 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, and therefore requires a licence from the MHRA (see Sensitive teeth for more). Marketers should be aware that even if they hold a licence for the product as a medicine or medical device, they should still hold robust evidence for any claims of efficacy of the product (Colgate Palmolive UK Ltd, 19 December 2018).
In addition, the ASA has ruled in the past that some enamel repair claims are medicinal. Specifically, the ASA investigated claims about Oral B Gum & Enamel Repair toothpaste. The claims “Its active repair technology helps … repair enamel in just two weeks” and “Its active repair technology helps rejuvenate gums … in just two weeks” were ruled to be medicinal claims by the ASA, as, in the context of the ad, they implied the product could reverse the effects of damaged gums from gum disease. As the product was not licenced as a medicine, the advertisers had breached the Code (Procter & Gamble (Health & Beauty Care) Ltd, 4 July 2018). The advertisers made changes to the ad following the ruling, but the ASA still concluded that claims including “it's active repair technology actively protects gums and strengthens enamel” were medicinal in nature due to the context of the ad (Procter & Gamble (Health & Beauty Care) Ltd, 9 January 2019). See also Healthcare: Medicinal claims.
See also Dental: General, Dental: Sensitive Teeth, Dental: Teeth Whitening, Healthcare: Medicinal claims, Healthcare: Celebrities and health professionals, Beauty and Cosmetics: General, Before and After photos and Beauty & Cosmetics: The use of production techniques.