AND REGISTRATION) DIRECTOR GENERAL (INVESTIGATION vs HINDUSTAN LEVER LTD.

THE Informant have filed an application seeking leave to withdraw the first information/complaint filed against the respondent in respect of advertisement issued by it in print and visual media asserting inter alia that the New Pepsodent toothpaste, marketed by the respondent was "102% better" than the leading toothpaste (Colgate) marketed by the Informant No. 1.

ON an application filed by the Informant under Section 12-A of the Monopolies and Restrictive Trade Practices Act, 1969 the Commission vide its order dated 5/6 November, 1997 held that the respondent, Hindustan Lever Ltd. is restrained from referring to any tooth-paste, manufactured by the applicant/complainant Colgate Palmolive (India) Ltd., in any manner, either directly or indirectly by means of any illusion or hint, in its TV commercials or newspaper advertisements and claiming 102% anti-bacterial superiority of its own product, New Pepsodent. The Commission further by its order of the 13th February, 1998 had constituted a three-member expert panel comprising two nominees of the two litigants and one expert nominated by the Commission, as its Convenor. While Dr. Richard E. Stallard was nominated by the applicant/complainant, Dr. P.D. Marsh was the nominee of the respondent whereas Dr. Michael Cole was nominated as the Convenor of the expert panel by the Commission. The panel submitted its report dated 15th June, 1999 concluding that the claim made by the respondent that its toothpaste with the brand name New Pepsodent was 102% more effective in fighting germs than the famous leading toothpastes was justified.

Subsequently vide an application under Order XXXIX Rule 4 of the Code of Civil Procedure, 1908 the respondent Hindustan Lever Ltd. prayed that ad interim injunction granted by the Commission vide its order dated 5/6th November, 1997 may be vacated. The Commission vide its order dated 19th July, 2001 held as under : "We consider it appropriate to ask the expert panel to conduct an independent clinical study in accordance with the Commission''s remit and give its findings about the truthfulness of the claim made by the respondent. As this case has been pending for nearly five years and it is necessary to avoid further delay, we think that the same panel should be entrusted with this work. We, therefore, direct the expert panel to re-examine the claim of 102% superiority and conduct the necessary clinical study and submit its findings within the minimum period needed for determining the truthfulness of the claim."

THE complainant i.e. Colgate Palmolive (India) Ltd. filed an appeal before the Hon''ble Supreme Court against the order dated 19th July, 2001. In an order rendered in Civil Appeal No. 7312 of 2001 the Hon''ble Supreme Court passed the following order : "Learned Counsel for the appellant submits that the matter has been settled out of the Court and seeks leave of the Court to withdraw this appeal. THE appeal is dismissed as withdrawn accordingly."

In view of the compromise effected between the parties the application filed in Miscellaneous Application No. 40/2002 for withdrawal of the complaint is allowed. The order dated 19th July, 2001 passed by the Commission has become infructuous and accordingly the order passed on 19th July, 2001 need not be communicated to the Expert Committee. The complaint as well as the Review Application stands disposed of in these terms. Notice of Enquiry issued in U.T.P.E. 405/1997 also stands discharged. Complaint and R.A. disposed of.