The Supreme court of India has recently dismissed the Special Leave Petition[1] filed by Hindustan Unilever Limited (HUL) against the order of the Bombay High Court, which partially granted HUL’s Interim Applications filed against USV Private Limited (Sebamed) in an advertisement squabble.

HUL had filed a case [2] against Sebamed before the Bombay High Court for its advertisements and Television Commercials (TVC) featuring soaps which were described as “Filmstars Ki Nahi, Science Ki Suno” (with reference to the Lux soap), “Dudh Jaise Safed Soap Ka Sach” (with reference to the Dove bar) and “Transparent Soap Ka Sach” (with reference to the Pears soap). In the said TVCs, Sebamed had stated that the pH levels of Lux and Pears soap were 10, which was the same as that of the detergent soap Rin, while that of Dove soap was 7. The TVCs stated that the pH level of Sebamed Cleansing Bar (Sebamed’s soap) was 5.5, which apparently was perfect for sensitive skin. It was contended by HUL that the said advertisements and TVCs were disparaging and belittling its products, and misleading the public as the harshness and mildness of a soap was not solely determined on the basis of its pH level.

On the other hand, it was contended by Sebamed that the said advertisements and TVCs were made to inform the public and state the scientific fact that the pH levels above 5.9 causes dehydration of the skin by removing the body’s natural oils, irritability, and alteration in bacterial flora. It was contended that they had merely stated the fact that the pH levels of HUL’s products were not safe for the skin as compared to the ideal and safest pH levels of Sebamed’s soap being 5.5. It was further contended by Sebamed that advertisements were a form of commercial-free speech and was protected under Article 19(1)(a) of the Constitution of India, which could not be indicted by any law unless the same fell within the exception of Article 19(2) of the Constitution of India.

The Bombay High Court in its order for the Interim Application filed by HUL had stated that an advertiser in their advertisement can claim their product to be the best, but cannot state that its competitors or their products were bad, and if it does so, either expressly or by necessary implication, it would be guilty of slandering the goods of the competitors and defaming them. 

It was held by the High Court that in making a soap, several ingredients go into determining the quality and harshness/mildness of a soap, and the same could not be determined by pH value alone. It was held that the advertisements and TVCs would not be protected under commercial free speech under Article 19(1)(a) of the Constitution of India, as it does not allow anyone to disparage, belittle and/or malign the product of a competitor.

The High Court finally held that in the advertisement on the Dove soap titled “Doodh Jaise Safed Soap Ka Sach”, the advertisement informed the public that the pH level of Dove soap was 7 whereas the pH level of Sebamed’s soap was 5.5. Therefore, since the advertisement only conveyed that Sebamed’s soap was better than Dove, it did not in any manner disparage or belittle the Dove soap. With regard to the other two advertisements and TVCs, on Lux and Pears soap, titled “Film Stars Ki Nahi, Science Ki Suno”, and “Transparent Soap Ka Sach”, it was held that the advertisements and TVCs disparage Lux and Pears soaps by portraying that the use of Lux and Pears soaps were as bad or equivalent to using the detergent soap Rin on the skin. Accordingly, the High Court permitted Sebamed to air their advertisements titled “Film Stars Ki Nahi, Science Ki Suno” and “Transparent Soap Ka Sach”, without any reference to the washing detergent RIN or any other washing detergent. This order was upheld by the Supreme Court as is, when HUL appealed against it.