The District Consumer Forum, Central Delhi, has recently imposed punitive damages of Rs.15 Lakhs on Emami, a leading personal and healthcare products manufacturer, after holding that its advertisements in relation to its men’s fairness cream ‘Fair and Handsome’ were misleading. Let’s take a closer look at the contentions of the parties, observations of the Court, and final order that was passed in the case.

The Complaint

The complainant alleged that he purchased ‘Fair and Handsome’ and used it as per directions for use mentioned on the labeling and packaging of the product, but it failed to show any result as claimed.

Referring to ‘Fair and Handsome’ advertisements issued by Emami, the complainant submitted that false claims and promises were made that the product provides fairness in just 3 weeks.

The complainant alleged that

• the product is not of the quality and potency as claimed, and is therefore ‘defective’.
• unfair trade practice was adopted for the purpose of promoting the sale, use and supply of the product including:
  • Falsely representing that goods have characteristics, uses or benefits which such good does not have;
  • Making a false and misleading representation concerning the need for and the usefulness of the product;
  • Giving false and misleading facts about the said product;
  • Making a false advertisement about the product.

The Counter

Contending that the complaint was frivolous, Emami submitted that:

• ‘Fair and Handsome’ is a personal care product to keep the skin healthy;
• It provides protection and nourishment to the facial and neck skin – protection from UV Rays of the sun which causes darkening of the skin, and, nourishment which makes the skin soft and supple generally making it fairer;
• It is backed by scientific research, evaluation and quality control;

as such the advertisement is neither false nor misleading. The product has all the ingredients claimed in the advertisement and gives the desired results as promised.

Emami also disputed if the complainant had used the product for a period of three weeks as per directions. It submitted that no opinion of a dermatologist, or no expert report was filed by the complainant. In the absence of an expert report, provisions of Section 13(1)(c) of the Consumer Protect Act were not complied with. In contrast, Emami submitted about 8 test reports on its behalf in support of its submissions.

Emami also submitted that no allegation that complainant suffered loss or injury because of the use of the product was made, and no compensation can be awarded to the complainant unless such loss or injury was established.

Observations and Rulings of the Court

Considering the material placed and submissions made by both parties, the Consumer Forum observed that the advertisements depict that

• by application of the product, the complexion of the user changes from dark to wheatish and from wheatish to fair
• use of the product for a period of 4 weeks will ensure fair complexion.

The Court observed that the advertisements therefore make a representation to the general public that by the use of the product they can achieve fair complexion. The Court felt that this presentation was in “direct contrast” with the defense taken by Emami in the case, wherein they had submitted that the use of the product improves the health and quality of skin by providing protection and nourishment to the facial and neck skin. The Court observed that no attempt was made on behalf of Emami to show and justify the advertisements which hold out a promise of the skin getting fairer by the use of the product.

The Court finally concluded that:

• The advertisements published by Emami make a misrepresentation to the public at large about the effectiveness of the product to change the complexion of the skin from dark to wheatish and from wheatish to fair. It therefore amounts to an unfair trade practice being adopted by Emami to sell its product.
• Emami is also guilty of deficiency in service as the product sold to him was found to be defective.

Conclusion

The order of the Consumer Forum is appealable, and it is very likely that Emami might appeal against the order. Hence, we may not have heard the last on this issue.

It is very likely that some observations and rulings of the Court¸ including the few given below, might be challenged:

• “The complainant has categorically stated that even though he uses the product as required, it had made no effect on his complexion which did not improve.”

It would appear that the Opposite Party has specifically contested this allegation of the complainant. It is not clear what evidence the complainant submitted to establish that he had been regularly using the product as per the directions, and that its usage made no difference. Hence the ruling of the Court that Emami is guilty of deficiency in service as the product sold to him was found to be defective could well be challenged by Emami.

• “No attempt has been made on behalf of the OP to show and justify the advertisements which hold out a promise of the skin getting fairer by the use of the product.”

Emami appears to have submitted that the product provides protection from UV Rays of the sun which causes darkening of the skin, and, nourishment which makes the skin soft and supple generally making it fairer. Emami has also submitted that the product has all the ingredients claimed in the advertisement and gives the desired results as promised, and placed reliance on test reports. It is not clear if the Court considered these reports, and rejected them for any specific reason.

While we may not have heard the last on this issue, the order is a significant reminder of the perils businesses could be exposed to by an incomplete representation of their products and/or services made by them. To avoid undesirable consequence, businesses need to ensure that every representation made by them about their products and services conforms to the relevant legal provisions.