mix-and-match ad campaign actionable but "instant whitening" claims were mere puffery

Ledesma v. Hismile, Inc., 2026 WL 1146742, No. 24-cv-03626-KAW (N.D. Cal. Apr. 28, 2026)

Previously. Here, the plaintiffs provide enough allegations about the challenged teeth-whitening ad campaign to satisfy the court as to Rule 9 in the context of algorithmically generated ads, but still lose on puffery grounds. In essence, defendants allegedly exaggerated the teeth-whitening capabilities of their products through various means, such as unnaturally bright lighting and models who already have very white teeth, fake reviews, fake customer videos, claims of clinical proof, and claims of “color correction technology: purple and yellow are complementary colors opposite to each other on the color wheel, so purple ‘cancels out yellow undertones’ to reveal white teeth instantly.”

Plaintiffs alleged that there were thousands of ads posted on defendants’ social media accounts using the same core advertising methods, and that many advertisements “reus[e] the exact same clips in a different order, or with different actors reading similar scripts and acting out similar scenarios.” They brought California and NY claims.

Defendants argued that plaintiffs failed to identify the specific advertisements that they saw. But “California courts have recognized an exception to the requirement that a plaintiff identify the specific advertisement they relied upon ‘where a claim of fraud is based upon a long-term advertising campaign, which may seek to persuade by cumulative impact, not by a particular representation on a particular date.’ ”

The exception was satisfied here, where plaintiffs alleged that the ad campaign began more than ten years ago and saturates social media user feeds with videos, many of which reuse the same clips in different orders or with different actors reading similar scripts or acting out similar scenarios, all touting “the same false core message: that Hismile’s Products deliver ‘instant teeth whitening’ results.” Plaintiffs also sufficiently alleged their own individual exposure to this advertising campaign, including when and/or how long they saw the advertisements, what social media platforms they saw the advertisements on, more specific examples of the types of advertisements they saw, and the effect of those advertisements on Plaintiffs’ perception of the product -- namely, that the products “would produce an instant whitening effect.” That sufficed under Rule 9(b) to identify the who (Defendants), what (the advertising campaign and the types of advertisements viewed by Plaintiffs), when (the length of the advertising campaign and approximately when Plaintiffs were exposed to it), where (the social media platforms Plaintiffs viewed the ads on), and how (the allegedly false claim spread by the advertising campaign that Defendants’ products “instantly” whiten teeth).

Defendants argued that plaintiffs should have identified specific ads because they were still “readily accessible” on defendants’ social media. “But this argument only highlights the difficulty of identifying the specific advertisement; as Plaintiff points out, Defendant Hismile’s TikTok account posts at a rate of 15 or more videos a day, which results in over 1,000 videos in the span of 67 days. …To require that a plaintiff comb through hundreds to thousands of similar videos advertisements (assuming the viewed advertisement is still available) imposes a potentially insurmountable burden.” The court wouldn’t insulate high-volume social media advertising from scrutiny.

However, plaintiffs didn’t sufficiently identify the allegedly false/misleading influencers and customer reviews upon which they relied.

However, the case still had to be dismissed because “instant” whitening was puffery. (What about the clinical proof claim, above?) “Instant” wasn’t a quantifiable statement, but a general, subjective claim. Nor could plaintiffs use the duration of ads/demos during ads to show that defendants gave a definition to “instant.” That wasn’t a “binary and precise” criterion. “At what point in time would ‘instant’ no longer be an accurate description?” After all, “many things are advertised as ‘instant’ -- instant noodles, instant oatmeal, instant film, instant stain remover -- that are not literally instant but can take several minutes even if they are significantly faster than their non-instant counterparts.”