HC junks appeal by firm selling Sebamed soap against stay on ads 'ridiculing' other brands

The Bombay High Court on Wednesday dismissed an appeal filed by the healthcare company that owns Sebamed soap brand challenging a single bench order restraining it from broadcasting advertisements that allegedly disparaged or condemned popular brands in the category manufactured by Hindustan Unilever Ltd (HUL) and Wipro.

The appeal was filed by USV Private Ltd, the manufacturer of Sebamed soap.

A division bench of Justices Gautam Patel and Abhay Ahuja held that the order passed by the single bench of Justice A K Menon last month, which was under challenge, was a well-reasoned one.

The single bench order was passed on pleas filed by HUL and Wipro earlier this year alleging that some advertisements by Sebamed ridiculed popular soap brands of the two FMCG firms such as Lux, Dove, Pears and Santoor.

These ads claimed HUL and Wipro soaps had high pH levels (potential of hydrogen, or pH, is a measure of how acidic or basic a substance or solution is) and were as harsh as detergent soaps meant for washing clothes. HUL and Wipro had argued that most of their soaps were completely safe, gentle, and not harmful for one's skin at all. They had argued that USV's campaign was creating a scare in the minds of consumers “to make unjust gains” by “fraudulently creating a market for its products.'' Sebamed had argued that it was not trying to ridicule their popular brands but that it was merely stating the truth by disclosing the pH levels of these soaps and those of skin cleansing bars.

Aggrieved by the last month's order, the Sebamed manufactuer filed an appeal before a division bench contending the single judge had erred as he had failed to appreciate the defence of truth taken by USV.

USV also claimed that the consequence of the single bench's order was far-reaching as it caused a restraint on the right to free speech and expression, including the right to commercial free speech which advertisers are entitled to.

The division bench, however, noted that it cannot accept the argument of USV that 5.5 pH was the perfect level for human skin, as claimed by USV.

“This is where the case has a huge gaping hole. You (USV) are asking a court at the interim stage to accept the fact that 5.5 pH level is the perfect level. You may be right but this will have to wait till the final hearing. Wipro and HUL may have material to argue too,” Justice Patel observed.

The court further said the case was more about consumer protection than free speech.

“This is not so much a case of free speech as it is about consumer protection,” Justice Patel said.