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Indian Journal of Dermatology, Venereology, Leprology, Vol. 70, No. 4, July-August, 2004, pp. 251-252 Medicolegal Window Claims of cosmetic products Sirur Subodh Consulting Dermatologist and Medical Law Consultant, Mumbai Code Number: dv04088 An advertisement may scream and extol the virtues of a hair lotion or a beauty cream. When that very lotion fails to grow even a single strand of hair or the beauty cream does not impart even a trace of beauty to that not-so-good looking one, the shine in the advertisement disappears. What does a buyer do then apart from crying aloud, ′This is unfair!′? Rising to the occasion, the Monopolies and Restrictive Trade Practices Act and the more recent Consumer Protection Act incorporate provisions relating to unfair trade practices. Quite often false representations are made, e.g. the goods (like beauty creams, hair tonics, hair dyes, etc.) are of a particular standard quality, quantity, grade or composition. Sometimes, tall claims are even made regarding the uses, benefits, approval, sponsorship or performance of such goods or services. If the goods supplied or the services rendered do not live up to the expectations created by the advertisements in the mind of the consumer, a complaint can be filed alleging that the seller or service provider has adopted an unfair trade practice. The Consumer Disputes Redressal Agencies (Consumer Forums) can order the return to the complainant of the price or charge paid and the discontinuation of the unfair trade practice. They can also direct that corrective advertisements be issued to neutralize the effects of the misleading advertisement and their expenses to be borne by the person responsible for issuing the misleading advertisement. There could be certain advertisements which may seem to be misleading although in fact they may not be. The following example will illustrate this point. A consumer purchased a hair dye lured by an advertisement which stated that it was a permanent hair dye. His joy did not remain "permanent" as he saw his gray hair sprouting back on his scalp within 20 days. He approached the Monopolies and Restrictive Trade Practices Commission alleging that the claim regarding the permanent character of the hair dye was not factually correct. Expert witnesses produced before the Commission stated that hair dyes were classified into three categories: temporary, semi-permanent and permanent. While temporary dyes were washed off during the first shampooing, semi-permanent ones lasted for shampooing 6-12 times. The consumer was shocked to learn that the permanent label of a permanent hair dye indicates that it would be washed off only after shampooing 12 or more times. He did not know that this was the accepted connotation of a permanent hair dye. The MRTP Commission found that the allegations of unfair trade practice were not substantiated. However, the manufacturer offered to remove the vagueness of the word permanent. The Commission appreciated the move of the manufacturer to enlighten the consumer through advertisements or displays on the carton stating that the meaning of permanent indicates lasting for about 30 days or shampooing 12 or more times. The relevance of these issues to a dermatologist may be questioned. However, these issues indirectly pertain to our specialty since a dermatologist may be called as an expert witness before the Court or while opining on various beauty product related queries from the media, general public or our patients (although such products may not require our prescription for purchase). False or misleading claims made by a manufacturer may distress us but it is not possible for a dermatologist to file a complaint before the consumer disputes redressal agencies except under certain circumstances. Since only a consumer (a person who buys goods or avails or hires services for a consideration or price) can file a complaint, it follows that only the patient who has purchased the cosmetic or beauty product can file the complaint and not the doctor. If there are numerous consumers who feel that there has been an unfair trade practice, one of them can file a complaint on behalf of all consumers. This is called a class complaint. A voluntary consumer association can also file a complaint on behalf of the aggrieved patient. The State or Central Government is also entitled to file a complaint. It is thus clear that the dermatologist cannot sue the manufacturer on behalf of the patient because the dermatologist has not suffered any loss or injury due to the product used by the patient. If, however, the dermatologist has purchased a product from the manufacturer and used it on his patient the situation is different. If the product is found to be defective, then the dermatologist may sue the manufacturer before the consumer disputes redressal agencies. The following illustration will explain this point. An ophthalmologist′s patients turned blind after a cataract surgery performed on them. It was later proved that the blindness followed the use of an irrigation solution which contained impurities. The ophthalmologist filed a complaint against the manufacturer before the consumer forum claiming compensation for the loss caused to his patients due to use of the defective irrigation solution. The doctor was awarded compensation which he requested be paid to a trust that would rehabilitate his patients. If one is really public spirited then one can file a writ petition before the High Court or the Supreme Court. In one case, a physician filed a writ petition before the Bombay High Court regarding vehicular pollution seeking directions to the appropriate authorities to take effective steps to contain pollution. DISCLAIMER The contents of this article are only to create awareness regarding laws related to medical profession and not in the nature of legal advice. Legal advice should be taken in specific cases. This article is an extract from the book "Dermatology and the law" by Dr. Subodh P. Sirur. Copyright 2004 - Indian Journal of Dermatology, Venereology, Leprology |
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