Judge skeptical of false advertising claims against viral teeth whitener

OAKLAND, Calif. (CN) — In multiple ads on TikTok for a teeth whitening serum, oral care brand HiSmile smears purple paint onto a yellow rubber duck or piece of paper, immediately wiping it away to reveal white underneath — the videos repeat the effect on yellow-tinted teeth that immediately become gleaming white after the serum is applied.

Consumers of HiSmile’s popular teeth whitening serum and whitening strips say in a class action that those videos — along with others with brand and celebrity endorsements — were false advertising, but U.S. Magistrate Judge Kandis A. Westmore doubted Thursday that the suit had enough detail in its claims to move forward.

In the Thursday hearing, Westmore said that the plaintiffs’ lawsuit didn’t identify specific advertisements, nor specific elements of these ads, that led them to purchase HiSmile’s products, which could lead to the case’s dismissal.

“That’s the kind of thing that we need specificity about,” Westmore, said.

Without understanding what precise representations were made in the ads, Westmore said the court wouldn’t be able to tell if a reasonable consumer was misled by HiSmile, an oral care brand popular on TikTok, Instagram, Facebook and other social media.

Meanwhile, the four named California plaintiffs behind the lawsuit argued that referencing specific ads against the company would be difficult, claiming that HiSmile’s marketing used an algorithm capable of generating “seemingly infinite variations” of video clips for its ads showcased on various social media platforms.

“It’s difficult for plaintiffs to remember exactly which advertisements they saw because the advertisements use very similar video clips, skits and elements with minor changes,” Meg Berkowitz of Clarkson Law Firm, who represented the plaintiffs, told the judge.

The plaintiffs further argued that the new social media-based ad space doesn’t lend itself to the traditional analysis of false advertising, where singular instances of print ads or billboards bought by companies could be easily referenced in court, and that it would be impractical to ask class members to recall which of the thousands of ads they specifically saw from HiSmile on social media, given the “sheer volume” of its output.

Meanwhile, Hismile criticized the plaintiffs’ claims as “implausible.”

“The plaintiffs’ theory is ‘We saw some ads, we expected to see instant, dramatic whitening, we didn’t and therefore we were deceived,’” Michael Dominic Meuti of Benesch Friedlander, who represented HiSmile, told the judge.

HiSmile added that several of its ads bore disclaimers claiming that “results may vary,” and that changes were “non-permanent.”

The oral care company also disagreed with the plaintiffs’ claims that its products were “scientifically incapable” of delivering the results it promised, saying their lawsuit had no evidence of such claims about their specific products.

“If you want to rely on scientific evidence, you’ve got to rely on scientific studies of the specific product at issue,” Meuti said.

Hismile asked the judge to dismiss the complaint with prejudice.

Founded in 2014, Hismile has racked up millions of followers across social media platforms in recent years for viral novelty oral care products, including brand collaborations with Barbie, KFC and The Simpsons for a variety of flavored toothpastes and themed toothbrushes.

Specifically, their teeth whitening products have gathered celebrity endorsements from Kim Kardashian, who has filmed multiple video advertisements for the company.

“I love my Hismile products, the teeth whitening strips are my new obsession, they’re my new go-to, and I made them a part of my glam routine,” she said in a promoted TikTok posted to Hismile’s TikTok page.

Multiple ads, like the purple paint videos, posted to Highsmile’s social media channels attempt to explain how their purple-tinted V34 Color Correcting Serum uses color theory to “conceal yellow stains.”

The judge did not indicate when she would issue a ruling. Attorneys for both sides declined to comment on the hearing.

The plaintiffs claimed in their 2024 class action filed in the Northern District of California that the company engaged in “aggressive, pervasive, and fraudulent” social media marketing that relied on falsified before-and-after advertisements, misleading celebrity endorsements and deceptive influencer marketing.