Appellants Contend That Company’s Boast of ‘Instant’ Tooth-Whitening Is Not Mere Puffery

Tuesday, September 22, 2026

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Appellants Contend That Company’s Boast of ‘Instant’ Tooth-Whitening Is Not Mere Puffery

Brief Asserts Magistrate Judge Erred in Dumping Putative Class Action Centered on Claims Under California Consumer Protection Laws

By a MetNews Staff Writer

Above is a screenshot from the Hismile website promoting the manufacturer’s toothpaste. The graphic is included in a putative class-action complaint which a magistrate judge dismissed without leave to amend. The Ninth U.S. Circuit Court of Appeals was asked on Friday to reverse the judgment. The website no longer claims “instant” results but promises results after the first application.

The Ninth U.S. Circuit Court of Appeals has been asked to reverse a judgment dismissing a putative class action against the maker of tooth-care products that were represented as providing “instant teeth whitening,” a claim the plaintiffs insist is a provable falsehood but which a magistrate judge declared to be mere puffery.

Attorneys Glenn A. Danas, Bahar Sodaify, and Brent A. Robinson of the Clarkson Law Firm, P.C., in Malibu on Friday filed the appellants’ opening brief contesting the dismissal with prejudice of the complaint in an action against Hismile, which manufactures tooth paste, tooth powder, whitening strips and other products.

They maintained that “Hismile’s claims of ‘instant teeth whitening’ predominantly feature falsified demonstrations showing its products producing demonstrable whitening in as little as 3 seconds, and always in less than 30 seconds” and that a jury should be allowed to decide if that’s true.

The lawyers represent four named California residents and two New Yorkers. Seeking to represent a California subclass, they set forth claims in the operative pleading under the state’s Consumers Legal Remedies Act, the Unfair Competition Law, and the False Advertising Law.

Proposing certification of a New York subclass, they included claims under two consumer protection laws from that state, and pled breach of warranty and unjust enrichment on behalf of consumers nationwide.

Allegations of Complaint

The jettisoned second amended complaint declares:

“Hismile, a self-proclaimed billion-dollar company, has built its brand on a pervasive fraudulent marketing campaign claiming that its teeth-whitening products can deliver ‘instant whitening’ results. Hismile has aggressively promoted this false promise through coordinated social media advertising, particularly on TikTok, Instagram, Facebook, and YouTube. The company has flooded these platforms with falsified before-and-after images and videos, misleading celebrity endorsements, and deceptive influencer content, all designed to manipulate consumer perception of its products. Hismile further perpetuates this deception by publishing self-sponsored ‘customer reviews’ and directing its own employees to pose as satisfied consumers across social media. Regardless of the specific marketing tactic used, Hismile’s advertisements all convey the same false core message—that its products deliver instant teeth whitening.”

Although Hismile prevailed in the District Court, its website reveals an abandonment of its claim of providing “instant” whitening, but it still represents results “after just one treatment.”

Magistrate Judge’s Ruling

The brief filed on Friday challenges an April 28 ruling by Magistrate Judge Kandis A. Westmore of the U.S. District Court for the Northern District of California, who declared:

“[T]he Court finds that dismissal of the case is required because Plaintiffs have failed to identify a false or misleading statement because the assertion that Defendants’ products deliver ‘instant teeth whitening’ is nonactionable puffery.”

She elaborated:

“…Defendants’ description of its teeth whitening products as ‘instant’ is ultimately a subjective exaggeration of speed, such that ‘instant’ is not a specific, quantifiable claim that is likely to induce customer reliance….Indeed, the Court observes that 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. Accordingly, the Court simply cannot find that ‘instant teeth whitening’ is an actionable misrepresentation that can support Plaintiffs’ claims.

“Because the Court finds that ‘instant teeth whitening’ is non-actionable puffery, the Court finds that Plaintiffs’ case must be dismissed in its entirety.”

Appellants’ Contention

The appellants’ opening brief says:

“The district court erred in dismissing Consumers’ action, holding as a matter of law that Hismile’s claim of ‘instant teeth whitening’ is non-actionable puffery that would never induce consumer reliance. Under substantive state law, which controls in this diversity action, puffery is a question of fact that should only rarely be decided on the pleadings. The facts pleaded in the complaint show that ‘instant teeth whitening’ in context is highly likely to induce reliance by a reasonable consumer.”

It continues:

“A reasonable consumer would rely on claims of “instant teeth whitening” at least when paired with dentist- and scientist-led demonstrations of whitening occurring in seconds, with apparently real consumer reviews and testimonials confirming that the product produces instant teeth whitening, in a context where competing products offer teeth whitening only over a period of weeks, and when ordinary consumers know little of teeth whitening technology and reasonably rely on advertising statements. A reasonable consumer is likely to rely on the statement at issue. The judgement should be reversed and this matter remanded for further proceedings consistent with this Court’s opinion.”

The case is Ledesma v. Hismile, Inc., 26-3516.

Depicted is the side of a carton of Hismile’s Glostik-brand toothpaste saying that the product renders teeth “instantly whiter.” The claim has been discontinued.