Ad description
A product listing on a website for Saltdays, www.saltdays.co.uk, an online retailer, for a “Whitening Foam Toothpaste” product, featured images of the product and its packaging. One of the images headed “Actual using effects” featured three sets of ‘before and after’ pictures of teeth, showing whitened teeth in the ‘after’ pictures. Other images of the packaging included various claims such as “Brighten teeth” and “15 SECONDS Immediately breathe”.
The product description was titled “The fastest way to get whiter teeth without spending a fortune …” and included text stating “[…] uses a special wax-free formula with micro-foam technology that makes your teeth healthier and 8 shades whiter - without any chemicals. Getting whiter teeth has never been easier! Easily remove coffee or small stains on teeth with just one application daily. Whiter teeth within 2 minutes, no more expensive whiter treatments are needed”. Under “DESCRIPTION” text also stated “Intensive Stain Removal Toothpaste The strong cleaning power of baking soda can penetrate the enamel crevices and remove food particles, bacterial plaque, and deep stains embedded there” and “More Effective Than Traditional Toothpaste”.
The ad also featured embedded GIF videos. The first showed a woman with stained teeth applying the foam directly to her teeth, rinsing it around her mouth and spitting it out, and then smiling with brighter teeth. The second featured a split screen showing a woman with stained teeth alongside text stating “before using dark teeth”, and below that the woman smiling with brighter teeth alongside the statement “after using bright teeth”.
Issue
The complainant, who had purchased the product, challenged whether the claims that the toothpaste was effective at whitening teeth and worked within minutes were misleading.Response
Emilyma Ltd t/a Saltdays did not respond to the ASA’s enquiries.Assessment
The ASA was concerned by Saltdays’ lack of response and apparent disregard for the Code, which was a breach of CAP Code (Edition 12) rule 1.7 1.7 Any unreasonable delay in responding to the ASA's enquiries will normally be considered a breach of the Code. (Unreasonable delay). We reminded them of their responsibility to provide a response to our enquiries and told them to do so in the future.
Upheld
The ad included various claims relating to the whitening effects of the foam toothpaste product, such as “Whiter teeth within 2 minutes”, “The fastest way to get whiter teeth” and “8 shades whiter […] Easily remove coffee or small stains on teeth”, as well as the claim that the product which contained baking soda was “More Effective Than Traditional Toothpaste”. It also included before and after photos and GIF videos of a woman using the product, which appeared to show visibly whiter teeth after use of the toothpaste. We considered consumers would be likely to understand the various claims, and the before and after images on the product listing page, to mean that the Whitening Foam Toothpaste had the immediate effect of making teeth significantly and visibly whiter within two minutes, and was more effective at cleaning teeth than toothpastes widely known to contain fluoride.
However, we did not receive a response to the complaint or any evidence to substantiate the claims. In the absence of such evidence, we therefore concluded that the claims that the foam toothpaste was effective at whitening teeth within minutes were misleading and had not been substantiated.
The ad breached CAP code (Edition 12) rules
3.1
3.1
Marketing communications must not materially mislead or be likely to do so.
and
3.3
3.3
Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
(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
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).
Action
The ad must not appear again in its current form. We told Emilyma Ltd t/a Saltdays that future ads must not include claims that the foam toothpaste product could effectively whiten teeth within minutes unless they held adequate substantiation in support of such claims.
We referred the matter to CAP's Compliance team.
