BBB National Programs’ National Advertising Division referred HiSmile PTY to the Federal Trade Commission (FTC) and other regulatory authorities for review after HiSmile declined to provide an advertiser statement confirming it will comply with all of NAD’s recommendations.
New York, NY, Aug. 29, 2024 (GLOBE NEWSWIRE) — BBB National Programs’ National Advertising Division referred HiSmile PTY to the Federal Trade Commission (FTC) and other regulatory authorities for review after HiSmile declined to provide an advertiser statement confirming it will comply with all of NAD’s recommendations.
Competitor Oral Essentials, Inc. challenged certain HiSmile claims for its tooth concealer products (V34 Colour Corrector Serum and Glostik) and teeth whitening products containing PAP (PAP+ Whitening Strips, PAP+ Whitening Pen, PAP+Whitening Toothpaste and VIO 405 Refills or “Tooth Whiteners”).
The challenged claims appeared on HiSmile’s website, social media, and Amazon listings.
Instant Claims
The National Advertising Division (NAD) determined that the studies and research submitted by HiSmile do not provide a reasonable basis for claims that HiSmile tooth concealers provide “instant brightening,” “immediately brighten(s)” teeth, and the description of Glostik as an “Instant Whitening Wand.” Therefore, NAD recommended that these claims be discontinued.
Further, NAD recommended that HiSmile discontinue claims of “clinically proven instant whitening results,” “instant brightening,” “immediately brightens,” and “instantly remove yellow teeth stains” for its tooth whitening products as the evidence was not a good fit to support the claims.
Sensitivity Claims
In the absence of support on the impact of the tooth whiteners on “sensitivity,” NAD determined HiSmile’s claims of “no tooth sensitivity,” “sensitivity-free whitening,” “strips away the stains without any sensitivity,” and “no gum irritation” were unsupported and recommended they be discontinued.
Product Demonstrations
Oral Essentials also challenged certain product demonstrations and endorsements of HiSmile’s products that appeared on social media, including experiments conducted on various foods such as an egg, a banana, a lemon, or an ear of corn.
NAD concluded that Hismile’s product demonstrations can be reasonably understood as a visual demonstration of the whitening power of its tooth concealer. NAD noted that when a product demonstration is presented as visual proof of how the product will perform, the demonstration must be presented accurately and any material conditions or limitations should be clearly disclosed.
Accordingly, NAD recommended that HiSmile discontinue the use of its egg test as a product demonstration, or modify it to:
- Avoid equating the egg and staining elements to stains on teeth; and
- Make clear the material aspects of the test including the dipping time and the staining factors used.
As to HiSmile’s product demonstrations on other items such as a banana, NAD recommended they be discontinued or modified to:
- Avoid conveying the message that the demonstrations depict the whitening power of HiSmile’s products; and
- Make clear that demonstrations on objects that are not similar to teeth only demonstrate the mechanism of administration.
Material Connection Disclosures
In addition, Oral Essentials challenged product demonstrations and endorsements appearing on social media where it maintained the material connection between the endorser and HiSmile was not fully disclosed.
While HiSmile committed to using standard disclosures provided by social media platforms, FTC guidance cautions marketers against relying on the platform-provided disclosure if it is not clear and conspicuous. NAD has previously found that an “includes paid promotion” platform-provided disclosure is not clear and conspicuous.
Accordingly, NAD recommended that HiSmile modify any video endorsement to include a material connection disclosure that is clear and conspicuous in audio and video, keeping in mind that clear and conspicuous means unavoidable or difficult to miss.
During the proceeding, HiSmile permanently discontinued certain claims for its PAP+ Whitening Pen, PAP+ Whitening Strips, and tooth concealers. Therefore, NAD did not review these claims on their merits and will treat the claims, for compliance purposes, as though NAD recommended they be discontinued.
HiSmile did not provide an advertiser statement confirming it will comply with all of NAD’s recommendations. Per NAD/NARB Procedures, NAD has referred this matter to the FTC and other regulatory authorities for review and possible enforcement action. NAD will also refer this matter to platforms on which HiSmile’s advertising appeared.
All BBB National Programs case decision summaries can be found in the case decision library. For the full text of NAD, NARB, and CARU decisions, subscribe to the online archive. This press release shall not be used for advertising or promotional purposes.
About BBB National Programs: BBB National Programs, a non-profit organization, is the home of U.S. independent industry self-regulation, currently operating more than a dozen globally recognized programs that have been helping enhance consumer trust in business for more than 50 years. These programs provide third-party accountability and dispute resolution services that address existing and emerging industry issues, create a fairer playing field for businesses, and a better experience for consumers. BBB National Programs continues to evolve its work and grow its impact by providing business guidance and fostering best practices in arenas such as advertising, child-and-teen-directed marketing, data privacy, dispute resolution, automobile warranty, technology, and emerging areas. To learn more, visit bbbprograms.org.
About the National Advertising Division: The National Advertising Division of BBB National Programs provides independent self-regulation and dispute resolution services, guiding the truthfulness of advertising across the U.S. The National Advertising Division reviews national advertising in all media and its decisions set consistent standards for advertising truth and accuracy, delivering meaningful protection to consumers and leveling the playing field for business.
CONTACT: Name: Jennie Rosenberg Email: jrosenberg@bbbnp.org Job Title: Media Relations
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