Shopping Regrets and Guilty Sellers – Misbranded Drugs and Cosmetics

Author’s Note 

All of a sudden you come across this advertisement that looks like a game-changer and there’s nothing that can stop you from laying your hands onto it.

But soon after its continuous usage, you realize that it did nothing to help your skin rather left it flaky and dry.

Your skin is worse now, buyer’s remorse creeps all over you.

What can you do now? Is there any way to deal with those false claims?

Do you want to learn to sue them?

This post is a step-by-step guide to deal with companies and sellers etc who sell misbranded drugs and cosmetics.

Table of Contents

1. What are misbranded drugs and cosmetics? Why are they prohibited?
2. Consumer Protection Act, 2019 and Remedies
3. How to file complaints against Misbranded Drugs and Cosmetics?
   1. Filing an online complaint
4. Conclusion

What are misbranded drugs and cosmetics? Why are they prohibited?

It is no rocket science to realize why misbranded drugs and cosmetics are prohibited, nobody would want to buy an overpriced glow serum that does not work.

If it fails on the claims it advertised and the promise on the label, then it is clear that they have fooled you into buying their cosmetics. This is misbranding of cosmetics.

Misbranded cosmetics are defined under Section 17C of Drugs and Cosmetics Act, 1940 (hereinafter referred to as “DCA”).

A misbranded cosmetic is one where it is not labeled in a prescribed manner or the label is misleading or makes false claims or it contains a color that is not prescribed.

Similarly, a drug that is made to appear of greater therapeutic value than it really is or is not labeled as prescribed or if the label is misleading makes any false claim such a drug shall be deemed as a misbranded drug.

Section 17 of DCA defines misbranded drugs.

Section 27(b) of DCA penalizes manufacturing, distribution, sale, or stocking up of any misbranded drug with imprisonment of a minimum of 1 year which can be extended up to 3 years with fine of not less than Rs 500.

Whereas Section 27A penalizes manufacturing, distribution, sale, or stocking up of any misbranded cosmetic with imprisonment for a term which may extend up to 3 years and with fine.

These laws exist to prevent customers from being fooled by companies, manufacturers, distributors, and sellers.

Consumer Protection Act, 2019 and Remedies

The Consumer Protection Act, 2019 established the Central Consumer Protection Authority (CCPA) and Consumer Dispute Redressal Commission (CDRC) which regulates the cases related to violation of consumer rights, also has the power to impose a penalty on violators.^[1]

Note: Consumer Dispute Redressal Commission is a governing body that regulates the functioning of State and Center Councils. It further has a 3 tier structure of National and State Commissions and District Forums to manage consumer affairs. At the district level, it is called District Forums, at State, it is called State Consumer Disputes Redressal Commissions and the National Consumer Disputes Redressal Commission at the national level. All the above-mentioned forums and Commissions are nothing but Consumer Dispute Redressal Forums.^[2]

If any person causes false or misleading advertisement which is prejudicial to the interest of the consumer shall be punished with imprisonment for maximum of two years with fine extending to ten lakh rupees and for repetition of offense the imprisonment may extend to five years and fine shall extend to fifty lakh rupees.^[3]

How to file complaints against Misbranded Drugs and Cosmetics?

A consumer can sue the manufacturer, seller, or distributor of drugs or cosmetics under Section 420 of the Indian Penal Code for cheating by getting an FIR lodged against them.

He can also file a complaint in Consumer Dispute Redressal Forum at District, State or National level.

1. The complaint shall be instituted in the Consumer Forum within the limits of the local jurisdiction where both or any one of the opposite parties reside or carries on their business.^[4]
2. It shall be accompanied by the specified fee according to the value of the claim and has to be paid through a Demand Draft. This Demand Draft has to be drawn on a nationalized bank or through an Indian Postal Order in favor of the Registrar of the CDRC and payable at the respective place where the Commission is situated.
3. The complainant who is Below Poverty Line shall be entitled to exemption of payment of the fee for complaints up to one lakh rupees.

Refer the below table to calculate the fee that is to be paid:^[5]

It can be filed by writing an application on a plain paper containing all the details about both the parties and the dispute. The complaint should have to be accompanied by the copies of the documents which are necessary to prove the claim. The complaint should contain the following particulars:

1. Name and complete address of both the parties;
2. Date of purchase of goods or services availed and the amount paid;
3. Particulars of goods purchased with numbers or details of services availed;
4. Details of complaint, whether it is against Unfair Trade Practice/supply of defective goods/deficiency in service provided / collection of excess price, should explicitly be mentioned in the complaint petition;
5. Bills/receipts and copies of connected correspondence, if any.
6. While filing the complaint it is necessary to submit an affidavit in the court, it is proof that the facts described by the complainant are true to their knowledge.
7. Complaints should be signed by the complainant or his authorized agent.
8. To engage a lawyer is not compulsory, a complainant can file and represent his complaint himself or through his representative.^[6]
9. The complaint has to be filed within 2-years from the date on which the cause of action arises.
10. A complaint has to be disposed off within 3 months from the date of filing the complaint.^[7]

Filing an online complaint

The Indian Government runs an Online as well as a Telephonic Helpline for Consumer Grievances.  A complainant can also register his grievance through the NCH app, Consumer app or the UMANG app.

National Consumer Helpline numbers to register complaints are 1800-11-4000 and 14404

or can send a message on 8130009809.

You can file complaint here.

To lodge a complaint, the consumer has to register himself at the above-mentioned website. The complaint system has a menu that includes all brands registered with the Department of Consumer Affairs where the complaint can be filed and the supporting documents can be attached to the online complaint. Then complaint can proceed and disposed off through the same without visiting the Consumer Forum.

We also have Grievances Against Misleading Advertisement (GAMA), an online web portal established by the Department of Consumer Affairs, Government of India in March 2015.

You can visit its website to register a complaint against misleading advertisement- here.

The Department of Consumer Affairs has partnered with the Advertising Standards Council of India (ASCI) in tackling the menace of misleading advertisements through this portal.

ASCI is a self-regulation body. It ensures the truthfulness, honesty of representations and claims made through advertising so that it is not offensive to generally accepted norms and standards of public decency.

The Board of Governors is appointed to the Consumer Complaints Council (CCC) for further development.

The role and functioning of the ASCI & its CCC are to deal with complaints received from consumers and industry, against advertisements which are considered as false, misleading or illegal, leading to unsafe practices.

Conclusion

We all as consumers have our own share of regrets.

The time you bought a highlighter or cleansing oil that did not rock your world as expected and left a big hole in your pocket might still haunt you while buying something new.

The one thing that we consumers rely on before buying anything is either advertisements or labels, and that’s why sellers use dubious means to make their product stand out amidst the plethora of products in the similar category.

But what choice do we consumers have other than to just let go of our remorse shopping? Well fairly speaking, we do have a lot of options to make these false advertisers pay for their act which is extensively laid out in this blog. And I hope this helps you thoroughly.

Edited by Siddhant Pandey

1. Hemant Singh,What is Consumer Protection Act, 2019: Meaning and Key Features,https://www.jagranjosh.com/general-knowledge/meaning-and-features-of-consumer-prote, last accessed 12-4-2020. ↑
2. National Consumer Disputes Redressal Commission, History, http://ncdrc.nic.in/history.html, last accessed 20-5-2020. ↑
3. Consumer Protection Act, 2019,Section 89. ↑
4. Consumer Protection Act, 2019, Section 34. ↑
5. Grievances Against Misleading Advertisements (GAMA), Consumer Grievances, https://gama.gov.in/ConsumerGrivences.aspx, last accessed 20-5-2020. ↑
6. Consumer Protection Act, 2019, Section 2(5). ↑
7. Consumer Protection Act, 2019, Section 38(7). ↑