Consumer protection regimes around the world are driven with the intent to empower consumers and protect their rights. In India, the Consumer Protection Act, 2019 (which replaced the Consumer Protection Act, 1986) and the associated rules and regulations codify the law on filing of consumer complaints, misleading advertisements, unfair trade practices, etc. Advertisements in India are required to be in compliance with the standards and regulations set by the Advertising Standards Council of India (ASCI) as well which also provides for a robust framework for redressal. A recent case filed by a consumer against a company advertising and selling fairness creams in India once again stirred debate and discussion around misleading advertisements and how claims related to it come to be adjudicated [Nikhil Jain vs. Emami Limited, District Consumer Dispute Redressal Commission, Delhi, Complaint Case No. 53, order dated December 9, 2024].
Background
The district consumer dispute redressal commission in Delhi imposed punitive damages of INR 15 lakhs (approx. USD 17,000) on Emami Ltd. (an Indian multinational conglomerate catering to the personal care and healthcare consumer market segment in India) for unfair trade practice after a consumer filed a complaint alleging that the company's fairness cream advertisement was deceptive and misleading.
Facts of the Case
A consumer filed a complaint against Emami after using its Fair and Handsome cream for men and failing to achieve the promised fairness. The product's packaging claimed "fast action lumino peptide" that would make male skin visibly fairer in three weeks, advising users to apply the cream twice daily after cleansing the face for best results. The complainant, alleging no visible improvement despite following the instructions, accused Emami of making false claims and engaging in unfair and deceptive trade practices. He also noted that his grievance email to the company went unanswered.
In response, Emami argued that the consumer failed to prove the purchase or consistent use of the product in accordance with instructions. The company cited scientific studies suggesting that skincare results vary based on factors like diet, hygiene, lifestyle, and age. Emami further claimed the product is targeted at men aged 16–35 and that many users have expressed satisfaction with its performance.
Findings of the Commission
The District Consumer Disputes Redressal Commission observed that the product's packaging repeatedly used the phrase "fair and handsome" and included imagery suggesting fairness would result from regular use, as instructed. A visual of a man with coloured skin was shown after intervals of one week, two weeks and three weeks showing the progressive results of using the cream. However, the additional conditions cited by Emami—such as age, diet, and lifestyle—were not disclosed on the packaging. Lack of these additional variables gave an impression that to benefit from the product, only the instructions mentioned on the packaging would be enough to yield the claimed outcome. It was further observed that even celebrity endorsements of the product did not mention any additional instructions. The Commission held that if such factors were essential for efficacy, they should have been clearly stated. It clarified that the consumer's grievance pertained not to the product's ingredients, but to its lack of potency despite use as directed.
It was held that Emami undoubtedly sought to chart out a narrative of guaranteed fairness by creating a story through its packaging which a consumer of average intelligence would be misled to believe. The Commission found Emami guilty of being scarce with the instructions on the packaging knowing fully well that they might not yield the promised results. Emami was found guilty of indulging in misleading advertising and unfair trade practice driven with the intent to promote sales of its product.
On the question of punitive damages as claimed by the consumer, the Commission held that damages in such cases are to serve as a deterrent and should actually pinch the defaulter. Keeping in mind the overall size of the company, sales of the product, engagement of celebrities for endorsements, etc. punitive damages were determined to be INR 15,00,000 (approx. USD 17,000) out of which INR 14,50,000 were directed to be deposited with the State Consumer Welfare Fund, Delhi and INR 50,000 would be payable to the consumer who had been pursuing the complaint since the year 2013.
Conclusion
In the context of the consumer protection regime in India, ethical advertising has assumed a great degree of importance in recent times. As per ASCI, 81% of advertising violations in the financial year 2023-241 were on account of misleading claims. To keep up with growing consumer concerns, Indian advertising regulators have released guidelines that address deceptive environmental claims as well as unverified medical or health claims; guidelines that prescribe stringent disclosure requirements for influencers in advertising as well as those dealing with deceptive or dark patterns. The case being discussed showcases how consumer awareness is driving the need for regulation and how impactful these guidelines are - Emami's 'Fair and Handsome' cream – has, in fact, recently been rebranded to 'Smart and Handsome'.
Footnote
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
