Opinion: Bombay HC judgement on HUL V/S USV demystified for better understanding

Advocate Aazmeen Kasad demystifies the Bombay High Court Interim Application judgement in the matter of Hindustan Unilever Limited v/s USV Private Limited.

The Bombay High Court delivered its judgement on the Interim Application filed by Hindustan Unilever Limited (‘HUL’) against USV Private Limited (‘Sebamed’) in respect of the Sebamed advertisements which were running on television, in print, on hoardings and the website.

On January 7, 2021, Sebamed launched its advertising campaign comprising of a 10 second teaser film in Hindi ‘Sach Coming Soon’ which depicted models sitting on a table, and one stated “Filmstars, celebrities aur Bollywood beauties kuch bhi bolne tayyar hote hai par sach bolney se ghabratey hai, sach coming soon” followed on January 8/9, 2021 by 3 television advertisements in the Hindi language titled (1) “Filmstars Ki Nahi, Science Ki Suno”; (2) “Dudh Jaise Safed Soap Ka Sach”; and (3) “Transparent Soap Ka Sach” , which were launched in respect of its product referred to in those advertisements as the ‘Sebamed Cleansing Bar’.

The protagonists of the respective advertisements urge the viewers to ascertain the truth about the pH levels of the soaps: Lux, Dove and Pears. It is then indicated that the pH levels of Lux and Pears is the same as the detergent soap Rin and that Dove is also high (pH 7). In comparison, the pH level of Sebamed Cleansing Bar is 5.5 which is perfect for sensitive skin. It is for this reason that the advertisements / TVCs, titled as “Filmstars Ki Nahi, Science Ki Suno” (with reference to the Lux soap); “Dudh Jaise Safed Soap Ka Sach” (with reference to the Dove bar) and “Transparent Soap Ka Sach” (with reference to the Pears soap), suggest that in view of the alleged high pH levels, Lux, Pears and Dove are not appropriate and are harmful / harsh on the skin of the consumer.

Per the advertiser, the bathing cleansing bar ‘Sebamed’ is considered the world’s leading skin care brand from Germany and was developed in 1967 with a pH level of 5.5 to support the skin’s natural protective layer.  Normal healthy skin has the pH range of 5.4 to 5.9. Use of soap with high pH (higher the pH, greater the alkalinity) causes an increase in the skin pH which, in turn, has an increase in the dehydrating effect by removing the body’s natural oils, irritability and alteration in bacterial flora. Thus, it is a scientific fact that higher the pH, the harsher it will be on one’s skin acidity levels. A neutral pH value of 7 can also cause irritation and allergies. Optimal protection and compatibility with the skin (and which is slightly acidic), is only achieved with a pH value of 5.5.

The advertisements serve to inform the public that the pH value of Lux and Pears soap is almost the same as the pH value of the detergent soap Rin and even the pH value of Dove is higher than the ideal pH value for sensitive skin.

As per HUL, the advertisements were misleading as harshness and mildness of a soap is not solely determined on the basis of its pH level.

HUL contended that the ads were disparaging and belittling its products. Sebamed argued that advertisements are a form of commercial-free speech and, as such, are protected under Article 19(1)(a) of the Constitution of India and cannot be indicted by any law unless the same falls within the exception of Article 19(2) of the Constitution of India.

Justice BP Colabawalla of the Bombay High Court held as follows on the HUL USV case:

1. The decision is only in respect of the ad-interim relief application and that he has not delved into the issues in great detail which will be done subsequently when the Interim Application case is heard on March 16, 2021.

2. With respect to the law on the subject of disparagement and denigrating a product, he held that ‘through the medium of advertising which is no more than a commercial transaction, dissemination of information regarding the product advertised is nonetheless done.  The public at large is benefitted by the information made available through the advertisement. In a democratic economy, free flow of commercial information is indispensable. There cannot be honest and economical marketing to the public at large without they being educated by the information disseminated through advertisements. It is settled law that whilst advertising one’s own product, he is entitled to declare his goods to be the best in the world, even though the declaration may be untrue. He can also say that his goods are better than his competitors, even though such statement may be untrue. He can also say that his product is the best in the world or better than his competitors and also compare the advantages of his product over the product of others. However, while doing so, he cannot say that his competitors are bad and if he does so, either expressly or by necessary implication, he would be guilty of slandering the goods of his competitors and defaming his competitors and their goods. This is not permissible and, in such a case, the Court would be justified in granting an order of injunction restraining the repetition of such defamation. It is equally well settled that to decide the question of disparagement, the principles that have to be kept in mind by the Court are: (a) the intent of the commercial / advertisement; (b) the manner of the commercial / advertisement and (c) the story line of the advertisement / commercial and the message sought to be conveyed by it. The manner of the advertisement and the message sought to be conveyed are very important. If the manner and the message of the commercial / advertisement belittles, ridicules or condemns the product of the competitor, then, it amounts to disparaging. However, on the other hand, the message and the manner of the advertisement is only to show one’s product as being better or the best, without denigrating the other’s product, then it is not actionable.’ 

3. He further explained that one has to apply these tests viewing them from the eyes of a common man with average intelligence. A regular consumer is not a scientist who knows what ingredients go into making a bar of soap and what is the effect of those ingredients on the skin including the pH level of a soap.

4. If the Court arrives at a conclusion that the advertisement is disparaging, then, the Court has to look at the advertisement and identify the parts that belittle the competitor’s product and grant an appropriate injunction accordingly. The entire advertisement does not have to be stopped from being aired / published.

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5. With specific reference to the advertisement on the Dove soap “Doodh Jaise Safed Soap Ka Sach”, it points out to the public that the pH level of Dove soap is 7 whereas the pH level of Sebamed soap is 5.5, which is ideal for sensitive skin. All that this advertisement seeks to convey is that Sebamed soap is better than Dove, and therefore, it does not in any manner, disparages and/or belittles the Dove soap. 

6. With respect to the other two TVCs, on Lux and Pears soap, titled “Film Stars Ki Nahi, Science Ki Suno”, which compares Sebamed soap with Lux soap and “Transparent Soap Ka Sach” which compares Sebamed soap with Pears, he held that it disparages the Lux and Pears soaps respectively, by insinuating that the use of this soap is as bad or equivalent to using the detergent soap Rin on the skin. It cannot be disputed that in making a soap, several ingredients go into determining the quality and harshness/mildness of the soap. The mildness or harshness of a soap is not determined on the value of pH alone. Depending on the ingredients of the soap, it is very possible that a soap having a higher pH value may still be milder on one’s skin than a soap having a pH value which is lower.

7. The Hon’ble Judge permitted Sebamed to air their advertisements titled “Film Stars Ki Nahi, Science Ki Suno” and “Transparent Soap Ka Sach”, without any reference to the washing detergent RIN or any other washing detergent.

8. The advertisements would not be protected under commercial free speech as contemplated under Article 19(1)(a) of the Constitution of India. The shelter of Article 19(1)(a) does not permit a party to disparage, belittle and/or malign the product of the competitor.

9. On the print and online ads in which the Sebamed Cleansing Bar is shown at a level of pH 5.5 and the pH level of Lux and Rin is shown as 10 with wordings on the top stating “Did You Know Ph Of Lux Is The Same As Rin?” or “Did You Know Ph Of Pears Is The Same As Rin?”, he held that the ads seem to suggest that using the Lux and the Pears soap is equivalent to using the Rin detergent soap on your skin, which is not only disparaging Lux and Pears but is also misleading, as the pH level of a soap is not the sole determinant factor to ascertain whether the soap is mild or harsh on the skin and it certainly cannot be equated with a washing detergent, whose composition is quite different from that of a bathing soap.

10. The website ad was offered to be modified by the Advertiser itself who, submitted that the words “not safe” and “safe”, would be substituted with the words “not ideal” and “ideal ” respectively, and that this change would be effected immediately on the website of Sebamed.

11. Sebamed has been granted 10 days to pull down the advertisement on any hoarding and modify them.

This piece has been authored by Adv. Aazmeen Kasad. She is a practicing corporate advocate with over 20 years of experience, with a focus on the Media, Technology, and Telecom industries. She is a member of the Consumer Complaints Council of ASCI and a speaker at several forums.