5 Yrs Jail & 50L Fine For Fairness Cream Ads Sounds Great, But What Does It Really Mean, And Is It Enough?

Recent amendment suggested by Govt of India that proposes jail for fairness cream ads is a much needed step in the right direction, but what does it all really mean, and who will actually be punished?

The Drugs and Magic Remedies (Objectionable Advertisements)(Amendment) Bill, 2020, aims to make misleading advertisements that promote fairness creams, obesity reduction pills, improve height etc, punishable by law. However, some aspects of the draft seem to require better definition, and in a society that hankers after “fairness” and “slim bodies,” is this provision enough?

The obsession with “perfect” bodies is prevalent everywhere, but for Indians, it seems to be especially pervasive, with every person, irrespective of their gender, being shamed for some bodily “flaw.” Be it the emphasis on “slim, fair brides,” or the demand for “tall grooms” with a full head of hair, not to mention mythical sexual prowess, we hear it all. This has led to the proliferation of a number of fraudulent products being advertised that prey on these insecurities and claim to “cure” everything from dark skin to sexual performance.

In cognizance of all these voices, the Ministry of Health and Family Welfare of the Government of India, has proposed some amendments to the Drugs and Magic Remedies (Objectionable Advertisements) Act,1954. The proposal for the amendments is a welcome move in light of the concerns about misleading advertisements as highlighted by the Advertising Standards Council of India, an industry watchdog, on the basis of consumer complaints.

Some of the major changes suggested by the draft of the amendment, titled, Drugs and Magic Remedies (Objectionable Advertisements)(Amendment) Bill, 2020 are as follows:

1. It expands the definition of “advertisement” to include electronic media, website and internet ads.
2. It suggests a punishment of imprisonment which may extend to two years and fine up to ten lakh rupees, for a first time offence, and a imprisonment which may extend to five years and fine up to fifty lakh rupees for repeat offenders.
3. The schedule which specifies “diseases, disorders or conditions” to which the law applies has been expanded to 78 from 54 to include conditions like AIDS, change in colour of hair and new hair, fairness of the skin, increase in brain capacity and improvement of memory, improvement in height of children/adults, and improvement in size and shape of the sexual organ and in duration of sexual performance, among other things.

How these ads fool our brains

This certainly is a step in the right direction! The fact is that many beauty products are promoted in ways that are misleading. Stuti Bhattacharya, writing for IDiva, provides a great example of how these advertisements manipulate us.

“Brands pick up an ingredient, say an orange, and claim their product uses the orange to, say, brighten skin. In the ad, they say the Vitamin C in orange helps brighten skin, without actually mentioning if their product contains Vitamin C. In the actual product, there is no Vitamin C, just cheap orange essential oil, and a cheap bleaching ingredient to lighten skin. So, what they say in the ad is:

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• Vitamin C brightens skin, which is a fact.
• This product contains orange extracts (which doesn’t necessarily have to contain Vitamin C like an actual orange fruit does).
• This product will brighten your skin (but they don’t say how—they let us be misled into thinking it’s the Vitamin C).

Our brain deduces that orange contains Vitamin C and this product will therefore brighten our skin. What the brand DOESN’T mention explicitly is whether their product contains Vitamin C.

People are then misled into buying their products, thinking their skin will be brightened by a safe ingredient like Vitamin C. Instead, their skin is lightened by bleach with a product which smells like oranges, so they end up thinking it’s working,” she writes.

How bonafide laboratories get drawn into this mess

As the Telegraph reports, even government science laboratories haven’t been spared from being drawn into misrepresentations!

Scientists at the Council of Scientific and Industrial Research had developed a new formulation to treat acne marks, but a New Delhi based company had advertised the same via retail online electronic commerce channels as a “skin glow formulation” for “fair skin.” The product’s packaging specifies that the formulation was developed and licensed by the CSIR’s North East Institute of Science and Technology in Jorhat, Assam. The scientists were quick to point out that, this is a violation of the Drugs and Magic Remedies Act, because as a senior NIEST scientist said, “We had never intended our formulation to be promoted as a fairness cream.”

However, I wonder, what if a fairness cream “honestly” advertises that it works because it contains bleach? Given the desperation for fair skin in India, I can see people who will use the product, even if they know it contains harmful ingredients –so does the Act cover all advertisements that promote fairness of skin or only the ones that are “misleading” like in the examples above?

What does ‘ads’ mean in this context, and who is culpable?

Other aspects of the law that are confusing to me involve the expanded definition of “advertisement” to include electronic and internet ads. This is a welcome move, certainly, considering that the data that companies get via social media usage etc. are used to directly target people.

The act states that, “no person shall take any part in the publication of any advertisement” that makes false claims or misrepresents the true nature of the drug.

So for instance, will a person who runs a free blog on WordPress for example, who has no control over the ads that appear on their blog, be held responsible if a fairness cream ad or an ad for an obesity reduction pill appears? The ads that appear are usually dependent on the viewers’ browsing patterns –so does the viewer then become responsible for the ad? Or WordPress, because that is the platform? Or Google Adsense?

What about the CEOs of the companies that produce and promote these products? Advertising company heads? Celebrities that endorse these products?

Or will it be rank and file employees, and shopkeepers/beauty parlour owners etc. that will be held responsible?

As a layperson, I do not have the technical or the legal knowledge to answer these questions. If any of our readers have the answers, do let us know, because we are curious!

A need for proper implementation

As Mahesh Zagade, former Food and Drug Administration Commissioner of Maharashtra, pointed out to the Hindu Businessline, stringent laws don’t make much of a difference if they are not followed through with implementation. “The question is, over the past 66 years, how many convictions occurred under the existing law which calls for six months imprisonment that can be extended up to a year? There has been hardly any,” he said.

The draft of the amendment is open to suggestions, comments and objections from the public as well as stakeholders for a period of 45 days, so please do share your thoughts with the government as responsible citizens. You can do so by sending an email to [email protected], or via post to Under Secretary (Drugs Regulation), Ministry of Health and Family Welfare, Room No. 414A, D Wing, Nirman Bhawan, New Delhi – 110011.

We welcome the government’s initiative, and hope that all aspects of the law have been thought through. However, it is important to recognize that the fight against colourism and body shaming are far from over. The real change is needed in mindsets.

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