In an advertisement war against consumer goods major Hindustan Unilever Limited (HUL), a competing company, USV Private Limited, has dragged the former’s well-known brands Lux, Pears, Dove and Rin in an “open pH challenge”. USV’s advertising strategy has shaken up India’s affordable soap market that was otherwise confidently relying on lucrative advertisements by movie stars without any reference to scientific data.
Through strategic advertising, USV compared the pH level of its soap Sebamed (which it claims to be 5.5 pH and safe for skin) with allegedly high pH levels of HUL’s soaps. USV’s advertisements indicated that the pH levels of bathing soaps Lux and Pears were the same as the detergent soap Rin. Publicly-displayed hoardings also compared the pH levels of these soaps on a scale, pointing to which appeared to be better or safer for human skin.
The Bombay High Court suit
HUL immediately filed a commercial suit in the Bombay High Court, alleging that USV’s advertising campaign was malicious, misleading, and denigrated HUL’s well-known brands and products.
In its suit, HUL also said that the ad campaigns intended to create a scare in consumers’ minds by outrightly disparaging and denigrating its products and infringing its registered trademarks. HUL alleged that the comparison was only on the basis of pH levels which, by itself, is never the sole factor for ascertaining the mildness or harshness of a soap on human skin.
In response, USV argued that it is a scientific fact that higher pH levels in soaps meant that they would be harsher on skin acidity levels. USV also submitted that the advertisements are factually correct and supplied research reports in support of its claims.
The Bombay High Court vacated an earlier stay on Sebamed’s advertising and allowed USV to continue with its advertisement with only one modification, i.e., not to compare the other (bathing) soaps with Rin (being a detergent). The Court also reinforced the settled law on disparagement and its essential elements, which are as follows:
(a) the intent of the advertisement.
(b) the manner of the advertisement and
(c) the storyline of the advertisement and the message it seeks to convey.
The Court also held that the advertisements in the present case are targeted at the regular consumer, and accordingly, one must apply these tests viewing it from the eyes of a common man with average intelligence. The Court emphasised that a regular consumer is not a scientist who knows what ingredients go into the making of a soap, or the effect of those ingredients on the skin, including pH levels.
Clearly, USV’s strategy to create an uproar in the market through this campaign worked in their favour in the short term. The Court is yet to pass a final order in the matter. HUL’s branding team will have to come up with a quick reply in response to these pH campaigns, which will be interesting when it happens.
This kind of strategic comparative advertising is not a new tactic, by any means. Even HUL has used similar tactics as part of their ad campaigns in the past. Brand owners resort to such campaigns to increase sales either by suggesting that their product is of the same or better quality to that of the compared product, or by denigrating the quality of the compared product. While it may reap some immediate benefits in terms of increased brand visibility or a spike in sales, there are medium- and long-term effects of such advertising that must be considered too. Brand owners need to be conscious of their goodwill being harmed, and the risks of artificially provoking competition by releasing facts about competing products in the market.
There is no specific legislative mechanism regulating comparative advertising in India, and that is a concern in such cases. Judicial precedent tends to be relied upon while adjudicating such matters. But as the consumer goods marketplace heats up, instances of comparative advertising are only going to increase. A comprehensive legislative mechanism to address such emerging issues and guidelines for comparative advertisements would be extremely useful in the circumstances. With new brands entering the market daily, and various new challenges faced by branding teams, a fine balance must be tread between the competing interests of advertisers on the one hand, and consumer interests on the other.
An earlier note on extant guidelines and laws on disparagement and denigrating a product through advertisements is available here https://www.obhanandassociates.com/blog/comparative-advertising-and-product-disparagement-horlicks-vs-heinz/