Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
Eight video ads for HiSmile, a teeth whitening product, that appeared on Snapchat, Instagram and Facebook:
a. A Snapchat story, seen on 21 November, showed a woman wiping a gel-like substance off her visibly yellow teeth with her finger, revealing clean, white teeth. Text at the top of the ad read "White Teeth in 10 Minutes!".
b. A Snapchat story, seen on 28 December 2018, featured the claim “TRANSFORM YOUR TEETH IN 10 MINUTES!” and text at the top of the image that read “HiSmile…Known For Teeth Transformations”.
c. A Snapchat story, seen on 28 December 2018, featured an image showing a mouthful of teeth, half were yellowed and half were white. Text superimposed over the image read “Transform Your Stained Teeth in 10 Minutes”.
d. A Snapchat story ad, seen on 31 December 2018, featured a man who applied a clear gel-like substance to his yellowed teeth with a pair of syringes. He then rubbed the gel off in a zigzag motion revealing white teeth underneath. Small text at the top of the ad read “White Teeth in 10 Minutes”.
e. A Snapchat story seen on 6 January 2019 showed an ‘unboxing’ of the HiSmile teeth whitening kit and text that read “Swipe up for White Teeth in 10 Minutes”.
f. An Instagram story ad seen on 21 November 2018 that was the same as ad (a).
g. An Instagram post, seen on 3 January 2019, that showed a woman who applied a clear gel-like substance to her teeth with a single syringe. She then wiped the gel off one tooth revealing a white tooth underneath. A caption appeared alongside the ad that read “Let that sink in…”.
h. A Facebook post, seen on 23 January 2019, showed a third party applying a gel-like substance to a man’s teeth with a syringe. The man then placed a glowing gum shield-like object in his mouth. The object then disappeared, revealing a translucent film across his teeth. There was then a jump cut to another scene showing the man smiling with clean, white teeth.
Issue
1. Four complainants challenged whether the claims "White Teeth in 10 Minutes!" in ads (a), (d), (e) and (f), “TRANSFORM YOUR TEETH IN 10 MINUTES!” in ad (b) and “Transform Your Stained Teeth in 10 Minutes” in ad (c) were misleading.
2. Four complainants, who believed that teeth could not be whitened instantaneously, challenged whether the depictions in ads (d) and (g) and (h) misleadingly exaggerated the capability or performance of the product.
Response
HiSmile Pty Ltd t/a HiSmile (HiSmile) did not respond to the ASA’s enquiries.
Assessment
The ASA was concerned by HiSmile's lack of substantive 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 substantive response to our enquiries and told them to do so in future.
1. Upheld
We considered that consumers would understand the claims "White Teeth in 10 Minutes!", “TRANSFORM YOUR TEETH IN 10 MINUTES!”, “Transform Your Stained Teeth in 10 Minutes” in ads (a), (b), (c), (d), (e) and (f) as objective claims meaning that by using HiSmile’s product, their teeth would be noticeably whitened in 10 minutes, regardless of the level of staining.
HiSmile did not provide any evidence to demonstrate that their product could whiten teeth in 10 minutes, and we therefore concluded that the claims had not been substantiated and were misleading.
On that point ads (a), (b), (c), (d), (e) and (f) breached the 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),
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
We noted that the videos used in ads (d), (g) and (h) appeared to show teeth being whitened after the application of a clear gel-like substance. Although we acknowledged that ads (d) and (h) included the claims “White Teeth in 10 Minutes” and “Let that sink in…”, which might be understood to indicate that a short period of time could be needed for the product to take effect, we considered that did not counter the overriding impression from the visuals that teeth could be whitened instantaneously following the application of HiSmile’s product.
HiSmile did not provide any evidence to demonstrate that their product could whiten teeth instantaneously, as shown in the videos, or after a short period of time. We therefore concluded that the claim depicted had not been substantiated and was misleading.
On that point ads (d), (g), and (h) breached the 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),
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 ads must not appear again in their current form. We told HiSmile to ensure that future ads did not imply or give the impression that teeth could be whitened either in 10 minutes or instantaneously. We referred the matter to the CAP Compliance team.
