Fairness creams have major chunk in the total business of cosmetics which is evident not only from the various surveys but also from the advertisements appearing in print and electronic media for promotion of fairness creams. Most of the fairness creams make big and tall claims for their fairness beauty products and market them with a claim of change of colour of skin within a stipulated time and few big brands promote their fairness products as fairness treatment.
Main question arises that how fair is the business of fairness cream which involves:
1. What we exactly mean by the fairness?
2. Whether any cosmetic can make a claim of change in the skin tone/colour of the skin?
Fairness as the name suggests is change of the colour of the skin and any claim made by any cosmetic with respect to change in the colour of the skin by using a particular brand or a fairness treatment by a cosmetic seems to be a big, tall and false claim on the face of it. Schedule-J read with Rule 106 which gives list of diseases and ailments (by whatever name described) which a drug may not purport to prevent or cure or make claim to prevent or cure and under this Schedule at serial no. 18 “fairness of skin” is one of such disease or ailment. It clearly shows that even no drug can claim for the fairness of skin i.e. no drug can change the colour of the skin. Colour of the skin is natural and depends upon the pigment’s melanin which cannot be changed. This pigmentation in the skin depending upon melanin which is dependent upon their hereditary genetic characteristics. No drug can claim to change this hereditary genetic character. It clearly proves that fairness cannot be obtained by using a cosmetic. When even a drug is not allow to make a claim of change in colour/tone of skin, how a cosmetic can change the colour of skin. Now question arises how a “treatment” can be done by using a cosmetic whereas the treatment of a disease is a basic character of a drug. The word drug is defined u/s 3b of Drug Act as “all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatment, mitigation or prevention of any disease or disorder in human beings or animal.” Whereas, a cosmetic is defined u/s 3(aaa) of Drug Act as “cosmetic means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting, attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic.” Bare perusal of definition of both “Drug” and “Cosmetic” it is evident that a treatment cannot be claimed by a cosmetic and treatment of any disease can only be done by using a drug. Particularly treatment of a disease for which even a drug cannot purport to prevent or cure or make claim to prevent or cure and under this Schedule at serial no. 18 “fairness of skin” is one of such disease or ailment. It clearly shows that even no drug can claim for the fairness of skin then how a cosmetic can make this big, tall and false claim.
Now the answers to both the questions are clear beyond doubt that fairness of skin and its treatment cannot be claimed by a cosmetic. Rule 148-B of Drug Rules which was inserted by G.S.R. 46(E) dated 22.01.2009 and effective from 22.07.2009, which clearly states that “Prohibition against false and misleading claims – No cosmetic may purport or claim to purport or convey any idea which is false or misleading to the intending user” and this is punishable u/s 27-A of Drug Act. Such a cosmetic is covered under the definition of misbranded cosmetic and liable for the penal action as well as for prohibition orders for manufacturing and sale under Drug Act. The remedy for these big, tall and false claims also lies under Consumer Protection Act.
Narender Ahooja “Vivek”