Fairness Creams cash in on people’s desire to look fair. In a case that could have wider ramifications, a district consumer forum in Delhi held that the ‘Fair & Handsome’ ads by Emami are misleading and directed Emami to pay Rs 15 lakh as damages.
There is no dearth of fairness creams in the market. From promising fairness in a few days to a few weeks, these products are promoted by the icons of the film industry. A multibillion dollar industry that was once the preserve of only metros has now reached every nook and corner of the country. Emami’s Fair & Handsome was one of the first fairness products for men in India. In a rare case that could have wider ramifications, a district consumer court in Delhi recently ruled that the ‘Fair & Handsome’ ads by Shahrukh Khan are misleading and directed Emami to pay an amount of Rs 15 lakh as punitive damages.
One Mr. Nikhil Jain, a resident of Delhi filed a complaint in the District Consumer Disputes Redressal Forum of Central Delhi. The complaint was about the ‘Fair and Handsome Cream’, (World’s No.1 Fairness Cream for Men) being manufactured by Emami. The complainant contended that he had used the product as per directions for use mentioned on the labeling and packaging of the product, but it had failed to show any results as claimed. He also argued that Emami has been using Mr. Shahrukh Khan, a well-known actor as its brand ambassador for promotion of the product and it makes false claims and promises that it provides fairness in just three weeks.
The complainant claimed that the complaint is maintainable under sections 2(f) and 2 (r) of the Consumer Protection Act as the product is not of the quality and potency as claimed and that Emami has adopted an unfair trade practice for the purpose of promoting the sale , use and supply of the product. The complainant also said that the complaint against Emami is maintainable for the following reasons;
- Falsely represents that good have characteristics, uses or benefits which such good does not have
- Makes a false and misleading representation concerning the usefulness of good
- Makes a false and misleading representation concerning the need for and the usefulness of the product.
- Gives false and misleading facts about the said product.
- Makes a false advertisement about the product.
The Complainant’s Prayer
The complainant made the following two prayers in this complaint and requested the consumer forum to provide him relevant relief.
- To direct Emami to discontinue the Unfair trade practice as per section 14 of consumer Protection Act, 1986 as the benefits of product as claimed are false and also to give an advertisement in newspapers, for a continuous period of one year, across the country in English and Hindi and vernacular languages stating that such products do not provide any fairness to the men.
- Since Emami played with the emotions of the complainant as he purchased the product in order to get the benefits as mentioned and claimed, which turned out to be false claims, to award compensation of Rupees Nineteen Lakh ninety thousand, as punitive damages, in favor of the complainant plus the litigation charges and other transportation expenses of Rupees ten thousand.
In its response, Emami argued that the complaint is frivolous in nature and is not maintainable. It also denied that the complainant had used the cream for three weeks as per directions and there is no evidence to prove the same. In its defense, Emami made the following arguments,
- Fair and handsome cream is manufactured by it under a license from the competent authority and the same is backed by scientific research, evaluation and quality control.
- The complaint has been made motivatedly to malign the goodwill and reputation of Emami who is a renowned manufacturer of consumer goods which are highly popular in domestic and international market. Each of the products manufactured by Emami including the Fair and Handsome cream is manufactured under strict quality control and is the product of extensive scientific research.
- Fair & Handsome has been developed by USA based Chanda Zaveri, renowned skin expert and protégé of two times Nobel Prize winner, in collaboration with India. Dr. Chanda Zaveri is in possession of various United States Patent for invention of Peptide complex in respect of dermatology healing, treatment of Alopecia, hair ailments and various cosmetic products relating to hair and skin care treatment and beautification and has also extensive know how and technical knowledge as regard to manufacture of various cosmetics and herbal products.
- No remarks made regarding the product Fair and Handsome cream by Emami in any manner are misleading. The Fair and Handsome cream is basically a personal care product to keep the skin healthy, the skin being one of the largest organ of the human body and the facial and neck skin being largely exposed to the vagaries of nature, sunlight (ultra violet Rays), dust, wind etc. the cream provides protection and nourishment to the facial and neck skin.
- The desired result from the use of a personal care product in any market anywhere in the world depends upon a host of other adjacent factors such as proper usage of the product and proper nutritious diet, exercise, healthy habits, hygienic living conditions etc. The effect of the product shall vary with these variables including age of the user.
- The particular product as would be evident from the packaging has been produced for the use of young men within the age group of 16-35 years for protecting their facial and neck skin from UV ray of the sun which causes darkening of the skin, soften, nourish the skin and remove the blemishes. The product is highly popular in the market since a large number of users have been benefited by its use.
- There is no evidence whatsoever before the Forum that the complainant used the cream regularly and that his skin condition did not improve. It is indeed absurd for a lay person to make such claim without appropriate medical opinion from a dermatologist. The complaint is frivolous and riddled with anomalies. There is no averment regarding the previous condition of the skin of the complainant, his life style and health habits, his general physical condition.
Emami requested that the case be dismissed since it does not have any substance.
The Forum’s Order
The forum relied on the complainant’s version that Mr. Sharukh Khan has been used in the ads with a representation that using the cream gives a fair complexion to the user. The forum relied on the transcripts and video recordings of the advertisements that focus on ‘Behtar Gorapan’ or fair complexion.
The forum concluded 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. The advertisements make a representation to the general public that, by the use of the product, they can achieve fair complexion.
The forum also held that this is in direct contrast with the defense taken by Emami wherein it has claimed that the use of the product improves the health and quality of skin. It also held that no attempt has been made by Emami to show and justify the advertisements which hold out a promise of the skin getting fairer by the use of the product.
The forum held that the advertisements published 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 to sell its product. The forum also held Emami guilty of deficiency in service.
The forum directed Emami to;
- Pay to the complainant a sum of Rs. 10,000/- as compensation which will also include the cost of litigation.
- Deposit a sum of Rs. 15 Lakh as punitive damages with the consumer welfare fund maintained with the State Commission, Delhi.
- Withdraw the advertisements representing that the use of the product will change the complexion from dark to wheatish or from wheatish to fair.