Procter and Gamble Home Products Ltd. vs HINDUSTAN LEVER LTD.

AFTER hearing arguments, we find this to be a fit case for issuing a Notice of Enquiry. We accordingly order to issue the same making it returnable on 23rd July, 1997.

WE have heard learned Counsels from both the sides on the question of grant of an interim relief at this stage. It may be mentioned at this stage that the complainant before us has made a grievance with respect to one advertisement issued by and on behalf of the respondent with respect to its Shampoo by the brand name of "Ceramides Sunsilk". A copy of the advertisement is at Exhibit A to the complaint. According to the complainant, such advertisement would amount to adoption on the part of the respondent of unfair trade practice within the meaning of Section 36A of the Monopolies and Restrictive Trade Practices Act, 1969 (the Act for brief) and this Commission should inquire into it under Section 36B(d) thereof. According to the complainant, such advertisement would also amount to adoption on the part of the respondent of restrictive trade practice within the meaning of Section 2(o) of the Act, and this Commission should enquire into it under Section 10(a)(iv) thereof. By means of an interim application under Section 12A of the Act, the complainant wants this Commission to restrain the respondent herein from making false and misleading representations whether by advertisement in any media or in the package of sale of products or otherwise whatsoever with respect to the advertised material. The respondent has filed its reply affidavit to both the complaint and the interim application. It has inter alia contested the interim application on various grounds. It has contended that the advertisement in question does not contain any false and/or misleading representation with respect to its product of Shampoo by the brand name of "Ceramides Sunsilk'' (the product in question). The complainant has filed its rejoinder affidavit to both the reply to the complaint and to the reply to the interim application.

In order to appreciate rival contentions urged before us, it would be quite proper broadly to outline the contents of the advertisement in question. The advertisement is captioned "Rebuilds damaged hair back to life" It is followed by the phrase "New Ceramides Sunsilk Extra Treatment Shampoo". Then appears the expression "The breakthrough in hair repair from Elide Hair Institute." Thereafter is found the advertised product "New Ceramides Sunsilk Extra Treatment Shampoo" claimed to be the first Shampoo that not only repairs but also rebuilds damaged hair. Then follows the picture of the first Shampoo that not only repairs but also rebuilds damaged hair. Then follows the picture of the package containing the label inter alia followed by the opinion of one Coleen stated to be a hair expert. Then advertisement ends with a kind of slogan to the effect: "The First Shampoo That Repairs & Rebuilds Damaged Hair."

ACCORDING to the complainant, hair can be repaired if damaged but cannot be rebuilt. It is also the contention on behalf of the complainant that it can never be brought "back to life". Learned Counsel Mr. Vahanvati for the complainant has strenuously urged before us that there is a difference between the meanings of the two words ''repair'' and "rebuild''. ACCORDING to him, damaged hair can be repaired like any damaged article, item or thing. ACCORDING to the submission of learned Counsel Mr. Vahanvati for the complainant, the question of its rebuilding would arise only when it has to be done afresh and make a new thing out of the old one. It has further been urged that, if the damaged hair have become dead, the same can never be brought "back to life". In that view of the matter, runs the submission of learned Counsel Mr. Vahanvati for, the complainant, the advertisement in question can be said to be containing false and misleading statements. As against this, learned Counsel Mr. Ravinder Narain for the respondent has submitted that the material on record would amply demonstrate how the ingredients of Ceramides introduced in the product in question work to rebuild the damaged hair. He has further submitted that the phrase "Rebuild damaged hair back to life" has to be understood in the context of the dull and lifeless hair to be made in a proper form so as to look natural and bouncy. He has further brought to our notice various advertisements issued with respect to certain health-care products in foreign magazines making practically similar claims with respect to such products.

SO far as rebuilding of the damaged hair is concerned, we find in paragraphs V and VI of the affidavit in reply how the substance styled as CMC acts with respect to the damaged hair, What is mentioned in the abovesaid paragraphs contains highly technical date. That would require evidence to be led at trial. The evidence to be led in the case would require scrutiny by this Commission before giving its final verdict on the controversy. However, the contents of the paragraphs in question would prima facie show that the damaged hair can be rebuilt. At Annexure ''A'' to the reply affidavit there have been explained ''Key Aspects of the Structure of the Hair''. As rightly submitted by learned Counsel Mr. Vahanvati for the complainant its authorship is not disclosed. It however appears to contain some useful information about the structure of hair which, by and large, is quite informative and instructive though its authorship is obscured. At Annexure ''B'' to the affidavit in reply is found ''A review of the Technical Support for the Action of Ceramide''. Again, its authorship is also not mentioned. It is possible that this has been prepared by and on behalf of the respondent with respect to its product in question. It is a sort of treatise about the product in question and its working with respect to the damaged hair. After reviewing the working of the ingredient of Ceramide introduced in its product in question two conclusions are drawn. The first conclusion "these data show that ceramide can replace natural ceramides which are lost as a result of damaging processes, and thereby repair the hair". The second conclusion is "this repairing action leads to a strengthening of the hair and, therefore, ceramide can rebuild part of the damaged hair structure. The aforesaid material on record annexed to the reply affidavit prima facie supports the contention raised on behalf of the respondent to the effect that the damaged hair cannot only be repaired but can also be rebuilt.

EVEN in its rejoinder affidavit, the complainant has more or less admitted that the damaged hair can be rebuilt by some formulation though not by a Shampoo. It thus becomes clear that the damaged hair can be rebuilt. If the formulation used by the respondent in its product in question really acts in the manner mentioned in Paragraphs V and VI of the reply affida vit, the contention in that regard deserves prima facie to be accepted.

THE claim of the respondent qua its product in question is "it can rebuild damaged hair back to life". It cannot be gainsaid that the phrase "back to life'' has its meaning in the common parlance to be to bring back to life what is dead. It would mean that something which is dead can be brought back to life. In other words, life can be infused into a dead thing. Damage to the hair can obviously be of several kinds. A kind of damage might be capable of being repaired by use of some formulation. Some kind of damage might require rebuilding. THE process of rebuilding of damaged hair can also be achieved by means of some formulation. Another kind of damage would mean complete damage to the hair. It would result in some kind of loss of or to hair. Loss of hair can be prevented but it cannot be recouped once it has occurred. That kind of damage to hair which results in loss of hair can hardly be brought back to their original position. The difference in connotations of words "repair" and "rebuild" can be explained by means of an illustration in the context of a building. A building might develop a crack in its walls. It would be a damage capable of being repaired. Some part of wall of some building might have been damaged extensively with more than mere cracks capable of being repaired. Some part of it might have fallen down and for that part the word "rebuild" would connote raising of the structure at that very place. If the building however falls to the ground on account of some mishap like earthquake or bombardment, a new building has to be erected or constructed in its place. It would then be a case of reconstruction. In a metaphorical sense, it can be said that the building is brought back to existence. It may be possible in the case of a building. Whether or not it is possible in the case of loss of hair is the question. The answer thereto would be in an emphatic. No.

It is difficult to agree with the submission urged before us by learned Counsel Mr. Ravinder Narain to the effect that what is meant to be conveyed by "back to life" would be to make damaged hair, which might have become dull and lifeless, full of life. In fact, that is what the respondent has tried to contend in paragraph 5 of its reply affidavit. Therein it is clearly mentioned: "It is incorrect to even suggest that the aforesaid statement is made to convey as if something dead is being brought back to life". (emphasis supplied). It is thus clear that the respondent itself admits that what is dead cannot be brought back to life. Then in that paragraph itself, the respondent has chosen to assert:"Rebuilding damaged hair back to life is in the sense of revitalising and making the hair healthy again. Making such hair healthy and revitalising them is aptly described as bringing back hair to life." (emphasis supplied) It thus becomes clear that the phrase "back to life" as understood by the respondent is different from what it is understood in ''the common parlance.

IT cannot be gainsaid that most people read advertisements in the language they commonly use. They would not try to read something what is not there. Most people, unlike critics, are not used to reading between the lines; they would read in a plain manner. For them the words they use convey literal meaning and not metaphorical meaning. In that view of the matter, the phrase "back to life" would convey the meaning to the effect that the product in question would be able to bring back to life the dead hair. To that extent, we are prima facie of the opinion that the claim in that regard is not only tall but also highly exaggerated and can be styled as misleading. In view of our aforesaid discussion, we are of the opinion that the complainant has made out a prima facie case in support of this interim application qua the expression "back to life" in the impugned advertisement.

THAT would bring us to the question of the balance of convenience. When it is found that the expression "back to life" is misleading, its effect on the public mind would be to accept that version. They would buy the product for getting the original hair back which might have been lost by passage of time or on account of some disease. It cannot be gainsaid that in India people are often taken in by tall claims made in advertisements. The campaign through any media would often prompt people to buy products which they may not genuinely need or which they might think of purchasing by being taken in by the tall claims made with respect thereto. It would be against public interests if such misleading claims are allowed to appear through any media. The balance of convenience is, therefore, in favour of public interests as this Commission would not like people to be taken in by such advertisements. Learned Counsel Mr. Ravinder Narain has invited our attention to several advertisements appearing in foreign magazines regarding healthcare products making similar claims. With respect, no advertisement in terms has made such a tall claim as to bring damaged or dead hair back to life. Most advertisements are couched in the guarded language. Some hyperboles might have been used. But they are not in any manner making any exaggerated or misleading claims. Besides, the ratio of literacy in western countries is much higher than what is prevalent in our country. People in the western countries, are more or less enlightened people qua literacy. The advertisements referred to by and on behalf of the respondent at the time of hearing have appeared in magazines in circulation in western countries which are developed countries and not under-developed or developing countries like our country. In that view of the matter, a literate person in a western country would easily discern the right from the wrong if the advertisement is in his own language, which may not be the case so far as our country is concerned. We are, therefore, of the opinion that the balance of convenience should tilt in favour of protection of public interests against such tall claims. In view of our aforesaid discussion, we are of the opinion that an interim injunction deserves to be granted in favour of the complainant restraining the respondent from advertising in any form that the damaged hair can be brought back to life to its original form by use of its Shampoo by the brand name of Ceramides Sunsilk. In the result, an interim injunction is ordered to be issued to the respondent restraining it from campaigning in any manner through any media with respect to its product by the brand name of Ceramides Sunsilk to the effect that it can rebuild the damaged hair by bringing the same back to life. It may be clarified that the objection is against use of the expression "back to life", and not against the whole or any other part of the advertisement in question. The respondent is directed to implement this order as expeditiously as possible but in any case not later than 15 days from today. Injunction granted.