All that Glows is not ‘White’ – The ‘Fair’ Legal Saga of ‘Fairness Creams’

Vikrant Rana, Isheta Srivastava | May 2020

INTRODUCTION

It is not wrong to say that the society at large has a fascination towards skin color, especially Fair- Skin or white skin. Whether it is about going for a professional meeting or for a casual coffee, the acceptable good looking standard in our head is somewhere defined by looking fair.

This fair skin mania is constantly played around in our everyday life’s advertisements on our phones, television, social media, newspapers, magazines, comedy shows, matrimonial ads, movies, songs, web series etc. Various cosmetic brands, especially having creams & make up products, have started a bandwagon of Fairness advertisements and constantly fueling their pockets through it. Sadly, most of these ads breed on our insecurities of being dark, obese, or short.

It is a bigger problem for the society because these false facts are glorified to an extent that it becomes a reality. This unreal reality is unfortunately giving birth to many crimes in the society. Therefore, there is an urgent need to change this.

FAIRNESS CREAM MARKET & THE NUMBERS

According to recently published report “India Fairness Cream & Bleach Market Outlook, 2023”, the women’s fairness cream category is anticipated to achieve market revenues of more than Rs 5,000 crore by year 2023. The fairness cream & bleach market of India is anticipated to grow with a CAGR of more than 9% in the forecast period of FY 2017-18 to FY 2022-23. Further, men’s fairness cream market is anticipated to grow with a CAGR of 6-8% during the forecast period of 2018-2023.

Factors such as increasing disposable income, influence of Bollywood stars and cricketers on young generation, western life culture have robustly increased the men’s fairness cream market in past some years. For generations, companies have been selling fair skin to young Indian women, promising better marriage and employment prospects.

THE SAGA OF FAIRNESS CREAM ADVERTISEMENTS & THE LAW

ASCI’s guidelines of advertising for skin lightening or fairness improvement products’

In 2014, the Advertising Standards Council of India (ASCI), a self-regulatory industry body, issued a set of guidelines titled ‘Guidelines of Advertising for Skin Lightening or Fairness Improvement Products’. It majorly stated that ‘no advertisement should communicate any discrimination or reinforce negative social stereotyping on the basis of skin colour’. Partha Rakshit, the then Chairman of ASCI, in one of his interviews to a newspaper daily, was quoted saying ‘Given how widespread the advertising for fairness and skin-lightening products is and the concerns of different stakeholders in society, ASCI saw the need to set up specific guidelines for this product category’. The guidelines7 mentioned that:

Advertising should not communicate any discrimination as a result of skin colour. These advertisements should not reinforce negative social stereotyping on the basis of skin colour. Specifically, advertising should not directly or implicitly show people with darker skin, in a way which is widely seen as, unattractive, unhappy, depressed or concerned. These advertisements should not portray people with darker skin, in a way which is widely seen as, at a disadvantage of any kind, or inferior, or unsuccessful in any aspect of life, particularly in relation to being attractive to the opposite sex, matrimony, job placement, promotions and other prospects.
In the pre-usage depiction of product, special care should be taken to ensure that the expression of the model/s in the real and graphical representation should not be negative in a way which is widely seen as unattractive, unhappy, depressed or concerned.
Advertising should not associate darker or lighter colour skin with any particular socioeconomic strata, caste, community, religion, profession or ethnicity.
Advertising should not perpetuate gender-based discrimination because of skin colour.

DRAFT DRUGS AND MAGIC REMEDIES (OBJECTIONABLE ADVERTISEMENTS) (AMENDMENT) BILL, 2020

In the month of February this year, the Ministry of Health and Family Welfare took a strong stand against advertisements that define the so-called standards of beauty acceptable within the society. It proposed Draft Drugs and Magic Remedies (Objectionable Advertisements) (Amendment) Bill, 2020.

The new draft bans advertisements of products that promote fairness creams, enhance sexual performance, cure premature ageing and greying of hair, improvement in height of children or adults, increase in brain capacity and memory, improvement in strength of teeth and vision, change of foetal gender by drugs.

Under the Act, the first conviction, the proposed punishment is imprisonment of up to two years and fine up to Rs 10 lakh. For subsequent conviction, the imprisonment may extend to five years with a fine of up to Rs 50 lakh.

MISLEADING INFORMATION & ADVERTISEMENTS

‘A New Delhi-based company has touted through advertisements a formulation for fair skin, angering Council of Scientific and Industrial Research scientists who say they had developed the formulation to treat acne marks. The company, which sells the formulation through retail online electronic commerce channels, has described it as a “skin glow formulation” for “fair skin”, which CSIR scientists and dermatologists point out is a violation of the Drugs and Magic Remedies Act. The product’s packaging specifies that the formulation was developed and licenced by the CSIR’s North East Institute of Science and Technology in Jorhat, Assam. “We had never intended our formulation to be promoted as a fairness cream,” a senior NEIST scientist said.’

Calcutta High Court takes a strong stand against cruelty on women for dark complexion

In one of its kind, the Calcutta High Court in its recent decision on June 25, 2020 in the case of Mazidul Miah @ Mia & Ors. v State of West Bengal12 has strictly held that Cruelty against a wife for her dark complexion will be punishable under section 498A of Indian Penal Code (IPC). It opined in its decision that ‘Causing cruelty to deceased victim for her black complexion even after her marriage by the in-law’s members would definitely attract Section 498A/34 I.P.C. against the in-law’s members, including accused husband.’

In this case, a young girl of merely 20 years in age died by hanging just months into her marriage owing to which her husband and his family was convicted by the Trial Court for murder under Section 302 of the IPC and cruelty under Section 498A of the IPC, both read with Section 34 of the IPC.14 The Court in its decision took note of the fact that this death was not a dowry death. The case rather highlighted the plight of a women of dark complexion whose in-laws were constantly dissatisfied with her due to her looks. The Court noted that ‘After visit to her in-law’s house, deceased victim was put to suffer cruelty, oppression and ill-treatment by her in-law’s members, including her accused husband for her black complexion. She was not loved by family members of in-law’s house, and frequently abused her with a threat that accused husband would be given marriage shortly after repealing her marriage and driving her out of the matrimonial home.’

Upholding the conviction of the Appellant the Court held that ‘The established fact is that there was an unnatural death of deceased held within seven months of her marriage. Such unnatural death was admittedly held in the in-law’s house of deceased victim. There was sufficient evidence to show that the victim received oppression, ill treatment, torture, cruelty in her in-law’s house by her in-law’s members for her black complexion……The facts and circumstances would thus unerringly point to the guilt of accused husband/appellant for causing homicidal death to deceased/wife by strangulation for his non-satisfaction over the black complexion of his wife, which led to give birth his motive to cause death of his wife.’

THE ‘FAIR’ TRADEMARKS

An addition to an age-old belief of ‘Fair Skin is beautiful’, are the numerous trademarks for skin cream products that have been filed having fair, white, glow in different combinations.

The following table incorporates just a handful of these trademark registrations as per the record of Indian Trademark registry.

S.NO.	Trademark	Proprietor	Application Number	Application Date	Class	Status
1.	FAIR & LOVELY	HINDUSTAN UNILEVER LIMITED	349209	16/05/1979	3	Registered
2.	FAIR MAIDEN	EMAMI LIMITED	562258	20/11/1991	3	Registered
3.	FAIREVER	M/S CAVINKARE PRIVATE LIMITED	810756	17/07/1998	3	Registered
4.	FAIRINA	AYUSRI HEALTH PRODUCTS LIMITED	863300	25/06/1947	3	Registered
5.	FAIR N GLOW	ANOO’S ELECTROLYSIS AND OBESITY PRIVATE LIMITED	897036	11/01/2000	3	Registered
6.	FAIRSKIN	ARUMAWADUGE JANET JOSEPHINE BALASURIYA	1094226	11/04/2002	5	Registered
7.	WHITEWASH	SHAHNAZ HUSAIN	605120	25/08/1993	3	Registered
8.	WHITESS ESSENCE SHISEIDO	SHISEIDO COMPANY LTD.	846248	19/03/1999	3	Registered
9.	WHITE BEAUTY	UNILEVER PLC	1834488	29/06/2009	3	Registered
10.	WHITE TONE	VINI COSMETICS PRIVATE LIMITED	1914548	28/01/2010	3	Registered
11.	WHITE DEW	Amorepacific Corporation	3931972	31/08/2018	3	Registered
12.	WHITE & WHITE	AJANTA INDIA LIMITED	1255915	17/12/2003	5	Registered
13.	WHITEGLOW	LOTUS HERBALS PRIVATE LIMITED	1967377	18/05/2010	5	Registered
14.	WHITE & BRITE	SMT. SUMAN	3104968	24/11/2015	5	Registered
15.	WHITETONE	Amit Jain, Proprietor, Trading as Universal Biosciences	3618296	22/08/2017	5	Registered

It is pertinent to mention here that the above-mentioned search results are very few registered trademarks that have been taken as an example. There are hundreds of other trademarks not only for cosmetic products but also pharmaceutical & medicinal products that have been registered with the words like fair, glam, glow, white, beauty, skin lightening etc.

BRANDS, FAIRNESS PRODUCTS & ADVERTISEMENT

The Indian society narrative of ‘Fair Skin’ is deep rooted & has been there for a long time now. Therefore, the need of the hour is to bring a revolutionary change in the mindset of the society. Apart from the government proposing punishments, it is also required that the stakeholders especially the brands and public faces come together and make a far-reaching impact with the help of visible examples.

REBRANDING STRATEGIES & BRANDS

Recently, Hindustan Unilever has declared it will drop the word ‘fair’ from its over four-decade-old skin care brand Fair & Lovely in its attempt to re-brand the skin care range as consumers seek more equitable forms of beauty. HUL’s Fair & Lovely, launched in 1975, is said to be India’s best known fairness brand, and sales of Fair & Lovely are 40% of the face care category.16 Sanjiv Mehta, CMD of HUL in an interview to a newspaper daily said that ‘We are making our skin care portfolio more inclusive and want to lead the celebration of a more diverse portrayal of beauty. In 2019, we removed the cameo with two faces as well as the shade guides from the packaging of Fair & Lovely and the brand communication progressed from fairness to glow which is a more holistic and inclusive measure of healthy skin. These changes were very well received by our consumers’.
Being a party to the global antiracism protests, L’Oréal al has announced it will remove words like “whitening” from its products, as global anti-racism protests continue. In a statement released by the company, it stated that ‘The L’Oréal Group has decided to remove the words white/ whitening, fair/fairness, light/lightening from all its skin evening products.”
In addition to both the above companies, Johnson and Johnson has decided to stop selling its skin whitening product range that has been popular in the Asian and Middle Eastern markets, including in India. The company will no longer sell its Clean and Clear fairness products in India, a Johnson and Johnson spokeswoman said to an online portal. Commenting on the decision, Johnson and Johnson said: “Conversations over the past few weeks highlighted that some product names or claims on our dark spot reducer products represent fairness or white as better than your own unique skin tone. This was never our intention; healthy skin is beautiful skin.”
Joining the bandwagon, German multinational company Beiersdorf, the maker Nivea personal care products, has started a process of reviewing its global and regional portfolios to determine implications of changing perceptions for its product offering and marketing approach. Nivea India MD Neil George, in a response to a query raised by a newspaper daily as to whether Nivea was thinking on similar lines as Unilever, said that “Nivea and its parent company Beiersdorf stand against racism and discrimination of any kind. We are actively listening to and learning from the current conversations, committed to contribute to positive change. Acknowledging the responsibility, we have towards consumers worldwide, we have recently started a process of reviewing our global and regional product portfolios to determine implications of changing perceptions for our product offering and marketing approach. Inclusive diversity, acceptance and togetherness are crucial to Beiersdorf’s culture”

CELEBRITIES SAYING NO TO FAIR SKIN

Nandita Das, an actor & director, was at the helm of an online movement against fairness products with ‘Stay Unfair, Stay Beautiful’. With the slogan ‘Stay unfair, stay beautiful’, the campaign ‘Dark is Beautiful’ was launched by an organization called Women of Worth, headed by Kavitha Emmanuel. Nandita Das, in an interview to a newspaper daily has said that ‘I have always been very outspoken about this issue, but till recently it was more informal. As the issue impacts so many people, young girls in particular, by default I have become a champion of it. I have had directors and camerapersons telling me that it would be good if I made my skin lighter as I was playing an educated upper-class woman’
Taapsee Pannu, a popular actor in India, once in an interview to a popular newspaper daily was quoted saying, “I hope it impacts consumers and they stop buying these fairness creams and realise that’s no standard of beauty. It is a very personal choice of a human being to look the way he or she wants to but if I am asked, I will never endorse fairness as benchmark for beauty’.
Prahlad Kakkar, an ad guru and filmmaker, once in an interview to a popular newspaper daily was quoted saying, ‘I was offered a fairness cream ad for babies, but I refused. We need to clean up our own act first. If we don’t self-censor, then the government is going to step in with a heavy hand…. By the time the judgement is passed and the fine is levied, public will have forgotten what the issue was. The company has already made its millions. The immediate action should be to arrest them and put them in jail for a week till further action.’li>

CONCLUSION

It is now expected that the Draft Drugs and Magic Remedies (Objectionable Advertisements) (Amendment) Bill, 2020 would become an Act in coming times. The global outcry about racism based on obsession of fair skin colour coupled with the Indian Government’s robust stance against punishing those who discriminate anyone based on skin color, the change is bound to happen. With big brands like HUL, L’Oréal, Johnson & Johnson, Nivea etc. rebranding themselves, it will be interesting to see who all join the bandwagon & be a part of the revolution related to discrimination based on skin-colour.

Tags: S.S. Rana & Co

About Author

Vikrant Rana

Vikrant Rana is the Managing Partner of S.S Rana & Co., a premier Intellectual Property Law Firm of India. As an Advocate-on-Record with the Supreme Court of India (2006) and registered as a Patent Agent in 1998, Vikrant has been litigating in courts all over India, primarily at the Supreme Court of India, various High Courts across the country, Trademarks Registry, Patent Office, Intellectual Property Appellate Board and the Copyright Board of India.

Isheta Srivastava

Isheta Srivastava is an Associate Advocate at S.S. Rana & Co., a premier Intellectual Property Law Firm. She is a registered Advocate with Bar Council of India. She has completed her graduation from Symbiosis Law School, Noida and has done her Masters in Intellectual and Technology Law from National University of Singapore. She is skilled in Research and her areas of focus Intellectual Property Rights, Innovation and Information policy.