Ad description
Two paid-for TikTok ads for Hismile, a toothpaste and teeth whitening company, seen on 14 November 2023:
a. The first ad showed a person who picked up a tube of Ben and Jerry’s Cookie Dough flavoured and branded toothpaste in the toothpaste aisle of a shop, from a selection of other Hismile toothpaste flavours. The toothpaste was then shown being mixed in a laboratory dish and applied to a toothbrush. The video also showed a person standing in front of a table with a line of Hismile toothpastes on it. Behind the line was a bottle of Flying Goose hot sauce and Lotus Biscoff spread and biscuits. The camera moved along the line and the person stated, "… these come in all these mouthwatering tasty flavours …" The video’s caption stated “Cookie dough flavoured toothpaste?! [...] #cookiedough #benandjerrys [...]".
b. The second ad featured a person walking through a warehouse, on-screen text of a TikTok comment stated, “Sorry I have a boyfriend, don't send me the cookie dough mystery flavour”. A voice-over read the comment and said, “Are you serious? We don't even have this flavour yet, and it's not one of the mystery flavours we sneak into orders.” A box of different flavoured toothpastes was shown that included the logos and branding of Sour Patch Kids sweets, Lotus Biscoff spread, Red Bull energy drink, Starbucks Pumpkin Spice coffee and Ben and Jerry's Cookie Dough ice-cream. The video’s caption stated, “Did someone say MYSTERY FLAVOUR? […]”.
Issue
The complainant challenged whether the ads were misleading because they understood not all of the branded flavours of toothpaste shown were produced and sold by Hismile.
Response
Hismile Pty Ltd said ad (a) showed the Hismile Research and Development Centre, and that the depiction of the Cookie Dough flavour, and the other unreleased flavours, highlighted their ongoing innovation and development. They said the ad was not misleading because it showed available flavours in its discussion of the Hismile bundle offer.
Ad (b) stated that mystery flavours would be included in some orders in the bundle offer. Hismile said the Ben and Jerry’s Cookie Dough, Sour Patch Kids, Lotus Biscoff, Red Bull and Starbucks Pumpkin Spice coffee flavoured toothpaste were unreleased and were unavailable. They said the ad’s discussion of the bundle offer reinforced that those flavours were unavailable, as when the bundle was shown being packaged, the camera moved across the range of available flavours and the actor said, “… and you can get any one of these toothpaste flavours for less than a dollar in the bundle.” They said the phrasing used in the ad and the removal of the unreleased flavours from the camera frame meant the overall impression of the ad was not misleading.
Hismile said that when showing ‘in development’ flavours not yet ready for purchase, their intention was not to mislead but rather to demonstrate their innovation and creative process. By presenting those flavours they sought to engage with their audience, to receive feedback on preferences and to enhance the overall consumer experience.
Assessment
Upheld
The ads showed a number of different toothpaste tubes that used the names, flavours and logos of well-known brands. The ASA acknowledged that ad (a) stated the Ben and Jerry’s Cookie Dough ice-cream flavour featured was not available. However, while the ad showed a toothpaste being mixed in a laboratory, the other tubes shown in both ads appeared to be finished products, and were similar in shape and size to the other non-branded generic Hismile toothpastes featured. Ad (a) also showed a line of Hismile toothpastes in front of a bottle of Flying Goose hot sauce and Lotus Biscoff spread and biscuits, with the caption “Cookie dough flavoured toothpaste?! [...] #cookiedough #benandjerrys”, which we considered gave the impression those flavours were available for purchase by consumers. Additionally, ad (b) showed a box that contained predominately branded toothpastes while a voice-over discussed the “mystery flavours” included in orders, which we considered gave the impression those flavours could be added to orders. We considered consumers would interpret the ads as meaning that Hismile produced the branded toothpastes shown and offered them for sale.
We understood that, at the time of the complaint, Hismile did not produce the branded toothpastes shown, and that they were not available for consumers to purchase. We therefore concluded the ads were likely to mislead.
The ads breached CAP Code (Edition 12) rules 3.1 (Misleading advertising), 3.7 (Substantiation), and 3.11 (Exaggeration).
Action
The ads must not appear again in the form complained off. We told Hismile Pty Ltd not to suggest they offered or produced flavours of toothpaste, such as those based around branded food and drink products, if this was not the case.
