Background
Summary of Council decision:
Three issues were investigated, all were Upheld.
Ad description
A magazine ad and website, www.beverlyhillsformula.com, for various Beverly Hills Formula toothpastes:
a. The magazine ad stated "A gold digger? Moi? The smile's fake. The whiteness isn't. Our toothpastes are on a mission. To give everyone a whiter, brighter smile. From rapid action for sensitive teeth to hard-working total enamel protection, there's a Beverley Hills Formula toothpaste for you. Each formula is proven to give you whiter teeth in just one minute ... TOP TIP: LEAVE ON TEETH FOR 1 MINUTE BEFORE BRUSHING". The ad featured four different products: Sensitive Whitening; Total Protection Whitening; Total Enamel Sensitive; and Total Breath Whitening. Further text stated "WHITER TEETH IN 1 MINUTE".
b. The website featured various products.
On the product page for Total Breath Whitening, text stated "Total Breath Whitening toothpaste delivers a cleaning formula that effectively removes stains in just 1 minute".
On the product page for Sensitive Whitening Expert, text stated "a study conducted at Bristol University Dental School proved that Beverly Hills Formula toothpaste can remove over 90% of staining in just 1 minute ... By using Beverly Hills Formula Sensitive Whitening Expert toothpaste you can combat tooth sensitivity and achieve a whiter, brighter smile, in just 1 minute".
On the product page for Total Enamel Sensitive Expert, text stated "Offering fast-acting, long-lasting protection against acid attack this toothpaste is proven to remove stains in just 1 minute ...".
On the product page for Dentist's Choice Gum & Whitening Expert, text stated "Removing stains in just 1 minute, Dentist's Choice Gum & Whitening Expert toothpaste is also proven to be less abrasive when compared with other leading brands ...".
On the product page for Natural Whitening Expert, text stated "Natural Whitening Expert toothpaste removes stains in just 1 minute, with over 90% of stains removed over a 5 minute period ...".
On the product page for Total Breath Whitening Mouthwash, text stated "... a study conducted at Bristol University Dental School has proved that Total Breath Whitening Mouthwash removes stains in just 1 minute, with over 90% of staining removed during a 5 minute period, restoring your smile to a natural, white colour".
On the Expert Advice page, text stated "Whitening What are the benefits of using Beverley Hills Formula toothpastes when looking to remove stains, plaque and tartar, and whiten teeth? Whiter teeth in 1 minute - Laboratory tests conducted at a leading British Dental School proved that our advanced cleaning formula removes stain in just 1 minute ...".
On the Research page, text stated "A recent study conducted at Bristol University Dental School proved that Beverly Hills Formula whitening toothpaste removes stains in just 1 minute …".
Issue
1. Church & Dwight UK Ltd, who believed that the products featured in ad (a) and (b) could only reduce stains gradually, challenged whether the claims that they could remove stains and result in whiter teeth in just one minute could be substantiated.
They also challenged whether:
2. the claim "... removes stains in just 1 minute, with over 90% of staining removed during a 5 minute period ..." on the product pages for Total Breath Whitening Mouthwash and Natural Whitening Expert in ad (b) was misleading, because they believed that "removes stains in 1 minute" implied that all stains would be removed in one minute; and
3. the claims "Whiter teeth in 1 minute - Laboratory tests conducted at a leading British Dental School proved that our advanced cleaning formula removes stain in just 1 minute ..." on the Expert Advice page, and "A recent study conducted at Bristol University Dental School proved that Beverly Hills Formula whitening toothpaste removes stains in just 1 minute …" in ad (b) misleadingly implied that the tests were conducted for all their products, when they understood that this was not the case.
Response
1. Purity Laboratories Ltd (Purity Laboratories) said the claims could be substantiated by the results of tests that were independently carried out by Bristol University. They submitted stain removal data for Beverly Hills Formula toothpastes and mouthwashes and an e-mail from their manufacturer which explained what the stain removal technology was based on. They also submitted a stain removal protocol document from 2009, an e-mail from Bristol University and a list of toothpastes they said had been tested in 2012, which included Natural Whitening Expert, Stain Removal Perfect White, Dentist's Choice Gum & Whitening Expert Sensitive, Natural White and Sensitive Whitening. They said, due to an inconsistency in spelling in the laboratory, not all product names stated in the test results accurately matched the names of their products. They said, while they only held spreadsheets of the test results, they were expecting to receive a more detailed report with amended product names in September 2012 and would be happy to supply this.
2. They said they did not state anywhere in their marketing material that the products could remove all stains in 1 minute. They said the ad made clear that the products removed 90% of stains in 5 minutes.
3. They said all Beverly Hills Formula products had been tested, except for the Perfect White Sensitive Toothpaste, which was a new product that they had launched this year. They said the manufacturer of the Beverly Hills Formula products confirmed that the whitening system used in this product was the same as previous Beverly Hills Formula products and that confirmation tests could be carried out if required. They also said Total Breath Whitening mouthwash was tested for stain removal potential and scored 30.9. They said that this meant that over 90% of stains were removed, when compared to a competitor's mouthwash that scored 31.5 in the same study.
Assessment
1. Upheld
The stain removal documents listed four Beverly Hills products: Natural White; Sensitive Whitening; Dentist's Choice - Gum and Whitening Expert Sensitive; and Natural Whitening Expert and figures for their baseline measurements as well as after one minute and two minutes. The baseline figures ranged from 2.825 to 3.000, the one-minute figures ranged from 1.330 to 2.037 and the two-minute figures ranged from 1.105 to 1.950. However we had not received any information as to what measurement system the figures related to. The same four products and one mouthwash featured in another list and indicated the percentage of staining removed after five minutes for each one, which ranged from 30.9% to 91.8%. The e-mail from the manufacturer stated that The Total Breath Toothpaste used the same stain removal technology as the Total Protection Toothpaste and The Total Enamel Toothpaste used the same stain removal technology as the Sensitive Toothpaste. It also stated that the stain removal technology was based on cleaning silicas, pentasodium triphosphate and the action of detergent. The stain removal protocol document indicated that, after five treatment cycles, the Total Protection and Total Breath products removed 93.9% of staining, while the Sensitive and Total Enamel Sensitive Products removed 90.0%.
However, the full test results were not supplied and we did not receive any information about how the removal of stains had been measured, how the figures had been calculated, or on what basis the "whiter teeth in just one minute" claim had been made. While Purity Laboratories said they were expecting to receive a more detailed report with amended product names in September 2012, they did not hold the full report at the time the ads were published. Because we had not received robust, scientific evidence to substantiate the claims that the products in ads (a) and (b) could remove stains and result in whiter teeth in one minute, we concluded that they had not been substantiated and breached the Code.
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),
3.11
3.11
Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.
(Exaggeration) and
12.1
12.1
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).
2. Upheld
A claim on the product pages for Total Breath Whitening Mouthwash and Natural Whitening Expert in ad (b) stated "... removes stains in just 1 minute, with over 90% of staining removed during a 5 minute period ...". We considered that, without qualification to clarify what degree of stains would be removed during a one-minute period, readers would understand that the product could remove all or most stains in one minute and that the claim "... with over 90% of staining removed during a 5 minute period" contradicted that. We therefore concluded that the claim was misleading.
On this point ad (b) breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product. (Exaggeration).
3. Upheld
Without reference to a particular product, we considered that the claims "Whiter teeth in 1 minute - Laboratory tests conducted at a leading British Dental School proved that our advanced cleaning formula removes stain in just 1 minute ..." and "A recent study conducted at Bristol University Dental School proved that Beverly Hills Formula whitening toothpaste removes stains in just 1 minute …" in ad (b) implied that all their "advanced cleaning formulas" and "whitening toothpastes" had been tested at Bristol University. Because we had not received any evidence to demonstrate that was the case, we concluded that the claims had not been substantiated and were misleading.
On this point ad (b) 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).
Action
Ads (a) and (b) must not appear again in their current form. We told Purity Laboratories not to make claims that their products could remove stains in one minute, unless they were substantiated by robust, scientific evidence, available prior to publication. We also told them not to imply that tests had been conducted on all their products, if that was not the case, and to clarify the basis for any stain removal claims in future.
