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.”

from Blogger https://tushnet.blogspot.com/2026/05/mix-and-match-ad-campaign-actionable.html