Beauty products in legal battle

Intense legal battle is on whether cosmetics producers should display ingredients on their products.

It’s an issue that has already consumed 14 years without any final solution.

 As it was fought in different courts, the government’s aborted decision making it mandatory for cosmetics and daily use products like soaps, shampoos and tooth pastes to display animal origin, if any, met with obvious resistance.

The industry body raised red flag over the move apprehending adverse reactions from the consumers. 

As a natural corollary, Indian Beauty and Hygiene Association approached the Bombay High Court which restrained the government from taking any further action on the June 16 notification. While the issue remains to be adjudicated, a similar question had previously agitated the Supreme Court.

More than a decade ago, animal welfare activist Ozair Husain, through a PIL, asked the Delhi High Court to protect the rights of conscientious consumers who objected to the use of animal derivatives in food, drugs and cosmetics. He said manufacturers must disclose non-vegetarian contents in their products through an easily identifiable mark to help consumer make an informed choice.

The HC admitted his petition and framed the questions for determination. The main issue was if the Constitution mandated such disclosures for its citizens.

Relying upon the Constitution, previous Supreme Court rulings and Articles of European Convention on Human Rights, International Covenant on Civil and Political Rights, the HC held that it is essential for a person to receive the relevant information to help him practice his beliefs and opinions. “If a consumer does not know contents of cosmetics, drugs or food products, it will be difficult for him or her to practise vegetarianism. Besides, it would help the user to discover the truth if the products were made of animals including birds and fresh water or marine animals or eggs.”

The Delhi High Court said that it is the fundamental right of the consumers to know whether the food products, cosmetics and drugs were of non-vegetarian or vegetarian origin. It noted that the government has already brought changes in the Prevention of Food Adulteration Act binding manufacturers to display contents of vegetarian and non-vegetarian origin by putting easily recognisable green and red dot, respectively.  It brought cosmetics as well as drugs on a par with the food items. The HC, however, made limited exception so far as life-saving drugs were concerned. In many cases, patients were unconscious and cannot make informed choice about selection of drugs, it said.

Aggrieved with the HC’s directions, Indian Soaps and Toiletries Makers Association and the Union Government approached the Supreme Court challenging the November 13, 2002 verdict by the HC.

Finding a serious paradox, the government contended that it is difficult to distinguish between life-saving drugs and other medicines. It said the direction for preparing a list of Life-Saving Drugs would neither be appropriate nor proper, particularly when there is no definition of ‘life-saving drug’ in pharmacology of the modern system of medicines.Since every disease has the eventuality of taking life if not properly treated in time, the identification of ‘life-saving drug’ depend upon identification of different situations when they are required, it maintained.

The association, on its part, pointed out that the use of cosmetics has nothing to do with the vegetarian or non- vegetarian origin ingredients, they are not “food products” and are not meant for ingestion. The group expressed its difficulty in identification of the origin of non-vegetarian ingredients, since it is very difficult to know the basic source from such ingredients.

It further asserted its handicap in obtaining requisite technology for analysing complex cosmetics formulae, which would put the manufacturers at a disadvantage in competing with international players. The PIL-petitioner reiterated right of the consumers to make informed choice.

The apex court said it is imperative for the state to ensure the availability of the right to the citizens to receive information. But such information can be given to the extent it is available and possible, without affecting the fundamental right of others.

“A citizen has the right to expression and receive information under Article 19(1)(a) of the Constitution. That right is derived from freedom of speech and expression comprised in the Article. The freedom of speech and expression includes the right to receive information. But such right can be limited by reasonable restrictions under the law made for the purpose mentioned in the Article 19(2) of the Constitution,” the SC said in its judgment on March 7, 2013. No interim arrangement

The SC also said that the writ petition filed by the activist was not maintainable. “The HC under Article 226 of the Constitution has no jurisdiction to direct the Executive to exercise power by way of subordinate legislation pursuant to power delegated by the legislature to enact a law in a particular manner, as has been done in the present case. For the same reason, it was also not open to the HC to suggest any interim arrangement as has been given by the impugned judgment,” the SC said.

The fresh move made by the government asking manufacturers to ensure from July 1 every package containing, soap, shampoos and tooth pastes and other cosmetics and toiletries to bear at the top a red or brown dot for products of non-vegetarian origin and a green dot for products of vegetarian origin came to be challenged before the Bombay High Court.

The Indian Beauty and Hygiene Association contended that the SC has already set aside the directions issued by the Delhi HC in this regard. They also claimed that the government was not vested with powers to bring out an order for it under the Legal Metrology Act. The power is solely vested under the Drugs and Cosmetics Act.

Agreeing to their plea, the HC relied on the SC’s decision which stated that the Union government is vested with the power under the Drugs and Cosmetics Rules, 1945, to amend the “label of the drugs and cosmetics” only in consultation with the Drugs Technical Advisory Board. Without fruitful consultation, no amendment can be made or suggested to change the label of the drugs and cosmetics.

The Board had, in 1999, rejected such a proposal. The Bombay HC concurred with their stand and said the Union government could not have amended the rules in a manner which has been prohibited by the SC. Granting interim relief to the manufacturers, the HC barred the government from taking any coercive action against manufacturers for non declaration of the products as vegetarian or non-vegetarian origin until further orders.Though the Centre intends to defend its authority to make such a rule, the solution may lie in distinguishing between drugs and cosmetics. Not to forget, the latest notification mentioned only soap, shampoos, toothpastes and other cosmetics and toiletries.