Two cases against HiSmile product ad claims referred to FTC by NAD for further review

The National Advertising Division (NAD), part of BBB National Programs, has referred HiSmile PTY's teeth-whitening claims to the Federal Trade Commission (FTC) and other regulatory bodies for further review. This referral follows HiSmile's refusal to provide an advertiser statement confirming its intent to comply with NAD's recommendations regarding certain advertising claims for its teeth-whitening and tooth concealer products.

The challenge to HiSmile's advertising was initiated by competitor Oral Essentials, Inc., focusing on claims made for HiSmile's V34 Colour Corrector Serum, Glostik, PAP+ Whitening Strips, PAP+ Whitening Pen, PAP+ Whitening Toothpaste, and VIO 405 Refills (collectively referred to as "tooth whiteners") on social media, the company's website, and Amazon listings for the products mentioned above, per NAD's case decision​.

Instant whitening claims

NAD found that HiSmile's evidence did not substantiate its bold assertions of "instant" results from its teeth whitening and tooth concealer products. According to NAD's case decision, the division determined that the research and studies presented by HiSmile were insufficient to support claims such as "instant brightening," "immediately brightens," and referring to the Glostik product as an "Instant Whitening Wand." Consequently, NAD recommended that these claims be discontinued.

HiSmile's claim of "clinically proven instant whitening results" was also scrutinized. According to the case decision, NAD's evaluation concluded that the "evidence was not a good fit to support the claims," leading to the recommendation that the company remove these statements from its marketing materials.

Sensitivity-free claims

The NAD also addressed HiSmile's tooth sensitivity claims, determining that the company's statements were unsubstantiated. HiSmile had asserted that its products provided "no tooth sensitivity," "sensitivity-free whitening," "strips away the stains without any sensitivity," and caused "no gum irritation."

However, the NAD investigation found no evidence to support these claims. As a result, NAD recommended that all sensitivity-related claims be discontinued.

Product demonstrations

Another area of contention was HiSmile's product demonstrations, particularly those conducted on social media. These demonstrations involved tests on various items, including eggs, bananas, lemons, and corn, to illustrate the whitening capabilities of HiSmile's products.

NAD concluded that these demonstrations could mislead consumers, stating that HiSmile's egg test should be modified or discontinued. In the case decision, NAD emphasized that when demonstrations are used as visual proof of product performance, "the demonstration must be presented accurately and any material conditions or limitations should be clearly disclosed."

For example, NAD recommended HiSmile "avoid equating the egg and staining elements to stains on teeth" and suggested modifications to "make clear the material aspects of the test including the dipping time and the staining factors used," the case decision confirmed.

Similar recommendations were made regarding other demonstrations on non-toothlike objects, such as bananas. NAD suggested these be modified to avoid "conveying the message that the demonstrations depict the whitening power of HiSmile's products," according to the case decision.

Material connection disclosures

The press release also highlighted the issue of material connection disclosures in HiSmile's social media endorsements. NAD found that HiSmile's reliance on standard platform disclosures, such as the "includes paid promotion" notice, was insufficient.

FTC guidelines say such disclosures must be "clear and conspicuous." NAD recommended that HiSmile modify its video endorsements to include disclosures that are "clear and conspicuous in audio and video, keeping in mind that clear and conspicuous means unavoidable or difficult to miss," reported the case decision.

HiSmile's response & NAD's referral to FTC

"During the proceedings, HiSmile permanently discontinued certain claims for its PAP+ Whitening Pen, PAP+ Whitening Strips, and tooth concealers," the case decision stated.  However, the decision continued, the company did not issue an advertiser statement agreeing to comply with all of NAD's recommendations.

As a result, NAD has "referred the matter to the FTC and other regulatory authorities for further review and possible enforcement action." Additionally, per the case decision, NAD stated that it would refer the case to the platforms on which HiSmile's advertising appeared.

Additional NAD action regarding HiSmile toothbrushes 

In a separate case decision​, NAD has also referred HiSmile PTY to the FTC for advertising claims made about its toothbrushes. The Procter & Gamble Company (P&G), manufacturer of Oral-B power toothbrushes, challenged claims made by HiSmile in two TikTok videos, where HiSmile made unsubstantiated comparative claims and disparaged Oral-B products.

Some of the claims included statements like, “[other brushes have] 1 million useless extras that you don’t need” and that HiSmile “is here to replace your dodgy electric toothbrush," the decision reported. Despite removing one video, HiSmile did not commit to discontinuing the remaining claims and refused to participate in NAD’s self-regulatory process, prompting the referral to regulatory authorities for further review and potential action.

These cases serve as a reminder to cosmetics and personal care product manufacturers about the importance of substantiating all claims, especially those related to performance and safety, to avoid regulatory scrutiny and potential enforcement actions. All case summaries can be accessed through BBB National Programs' case decision library, and full texts of NAD, NARB, and CARU decisions are available to subscribers of the online archive.