Meta description: The article aims to explore the rising influence of social media influencers in the beauty industry and the encouragement of unethical products in the midst of dupe culture. Also suggests the ways in whichthe production of unethical products can be regulated in the growing beauty industry when it comes to the responsibility of Social media influencers.
It is safe to say that Instagram and YouTube influencers have taken the world by storm. Or more precisely, taken the market by storm. Social media influencers create content actively on social media platforms, be it fashion, beauty or health. The social media content with respect to beauty is rising daily and varies from, random Amazon skincare finds to 5 lipsticks every brown girl should own, or even 5 dupes of high-end brands. The reason for the growth of such beauty content is that beauty standards have changed, with new skincare brands launching every month and introducing a new formulation of the ordinary sunscreen. The market and its products indeed change with the times, newer brands are launching every day, high-end brands, affordable brands as well as low-range brands, and there are brands to cater to every section of society.
In this rat race of newer brands stand the popular influencers, they are one of the primary mediums of promoting new brand and their products and rightly so. Social Media influencers hold more influencing powers than some celebrities; they hold their own goodwill,the youth follow their recommendation to the T, and their word-of-mouth matters. No one gets harmed in the process, brands are enjoying good publicity and outreach amongst the youth as well as increasing sales. While the influencers on the other side are getting paid hefty too.
THE DUPE CULTURE
Social media influencers put out a variety of content, in the form of Instagram posts, Instagram reels and stories, YouTube shorts, and long YouTube videos talking about a product in length and giving newer recommendations, and the list just keeps on increasing with new features of Instagram and YouTube and competition amongst the influencers in the market. What raises a cause of concern, however, here is the "dupe" content, dupes are in simple words, affordable alternative products of a product of a high-end or luxury brand, which can come as close to the original version but at a cheaper price. Often,videos will be available talking about the dupe of a popular product, for instance, the a high-end product and its dupe being an ordinary drugstore product that works and looks the same and is available in one-third of the price of the original.
The mass duping culture in India is a major cause of concern for the high-end brands that invest a lot of resources, and time in research and high-quality ingredients in curating its products. On the other hand, any brand can produce a similar highlighter palette and a moisturiser of similar formulation with cheaper ingredients thanthat of the high-end brand and get more sales than the original version. Indian consumers always prefer affordable products or mid-range product, and any consumer, for that matter, would choose an affordable product over a high-end product that costs them a fortune when both look the same when used.
However, a closer look reveals that some of the 'duped' products are nothing but actually a product similar to the original high-end product. All dupes per se are not unethical; not all dupe products are produced with the intention to counterfeit the original one, as there are thousands and lacs of products available with a huge variety to meet every consumer's demand, and it is possible to find similar products. But in a market where the middle-classrules, the duping culture can result in the production of more of counterfeit products, eventually leading to infringement of the brands' intellectual property rights.It is no secret that there exist loopholes in the Indian regulatory framework with respect to the cosmetic industry. Adding onto the lack of awareness amongst Indians regarding intellectual property rights, you'd find a lot of small-scale brands on India-based apps selling products as close to the original one.
High-end brands that sell high-quality cosmetic products generally have unique formulations and spend a considerable amount of time, money and resources into each of their products, they also get patents, trademarks as well as copyrights over the same. In the case of Islestarr Holdings Ltd. v Aldi Stores Ltd.1, Charlotte Tilbury successfully proved copyright infringement of 2 artistic works by Aldi, first, their 'Starburst design', which decorated the lid of the package containing two makeup powders and the 'Powder design', embossed into the separate makeup powders in the package.However, it is impossible to catch hold of every small-scale brand from different corners of the world and hold them liable for infringement, it is nearly impossible.
In such a scenario, social media influencers shall be regulated while promoting and showcasing products from unethical brands whose intention is merely to produce a counterfeit of the original high-end product. A product that is nothing but a cheaper and more affordable version of another brand and closely resembles the original one should not be boasted about; should not be talked about. The impact of such content can be huge, consumers will not hesitate in making a purchase, trusting the words of their favourite social media influencer, this, in turn, will encourage more producers to put out such dupes, eventually leading to a cycle of infringement of copyright of other brands as other unethical brands enter the market to make a benefit out of it.
It is crucial to address this issue as the beauty and cosmetics industry is getting bigger every day. The beauty and cosmetics industries shall be encouraged to create codes of conduct or ethical standards for influencers to follow while recommending products. Guidelines on ethical product promotion, transparency in their content, and intellectual property rights may be included in these codes. As the beauty industry is growing, the Drugs and Cosmetics Act of 1940 shall be amended in order to facilitate regulation in the changing landscape where social media is playing a large role in the beauty industry. Further, the Ministry of Electronics and Information Technology (MeitY), which is the primary regulator for social media platforms, should step in and consider amending the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, to include clear restrictions about influencers and their legal obligations in endorsing products on their social media handles as responsible digital intermediaries. Additionally, MeitY can also create a system for reviewing and reporting the contentposted by the social media influencers. Social media platforms can assist in monitoring and reporting information that breaches ethical standards or violates intellectual property rights. To ensure compliance of the guidelines, MeitY can collaborate with platforms.
The advent of social media influencers has unquestionably revolutionised the beauty and cosmetic industry, allowing companies and consumers to interact and participate like never before. However, the rise of the "dupe" culture, in which affordable alternatives try to imitate high-end products, has given rise to significant ethical and legal difficulties for the high-end brands.While customers enjoy the cost reductions that dupes provide, it is crucial to note that some of these dupes are not simply low-cost alternatives, but counterfeit items that violate the intellectual property rights of high-end brands. The success of a cosmetic brand largely relies on its brand recognition, and the kind of products it puts out, if similar products start floating around in the market, especially by the word of mouth of a popular social media influencer it presents a substantial problem for legal enterprises that invest extensively in research, high-quality components, and innovative formulas.
Furthermore, combating the growth of unethical dupes demands a multidimensional approach, including strictrules in order to regulate counterfeit products, educating the consumers on intellectual property rights, and cooperation between the companies and authorities. In this evolving landscape, balancing consumer choice along with intellectual property rights is a difficult issue. As social media continues to take over the beauty industry and the beauty industry grows, responsible influencer endorsements and other rigid regulatory measures can help strike a balance and ensure the industry's long-term health.
- Makeup Dupes and Fair Use, Samantha Primeaux, 67 AM. U. L. REV. 891 (2018). (Hein Online)
- Copycat Cosmetics: The Beauty Industry and the Bounds of the American Intellectual Property System, Marra M. Clay, Minnesota Law Review (2021). https://scholarship.law.umn.edu/mlr/3300
1. Islestarr Holdings Ltd. v Aldi Stores Ltd.,  EWHC 1473 (Ch)
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