COLGATE PALMOLIVE I LIMITED Vs. HINDUSTAN LEVER LIMITED

JUDGEMENT

(1.) By the order passed by this Commission on 13th February, 1998, an expert panel was constituted and the Commission's nominee in the expert panel was to act as the convener thereof. The expert panel was constituted pursuant to the order passed by this Commission on 5th/6th November, 1997. It was empowered to determine its own protocol for the purpose of finding out the validity of the claim of 102% superiority of New Pepsodent over the toothpaste manufactured by applicant/complainant No.1 by the brand name of Colgate Dental Cream.

(2.) It appears that the expert nominated by this Commission had some doubt about the scope of enquiry to be made by the expert panel. He, therefore, addressed one communication of 27th July, 1998 to the Chairman for seeking guidance of this Commission in that regard. A copy was given to each rival side for the purpose of inviting the respective comments thereon. Both the sides have filed their comments. We have heard their arguments as well.

(3.) It is true that the aforesaid order passed by this Commission on 5th/6th November, 1997 was an interim order passed on some prima facie case in favour of the applicants/complainants. It has been observed therein that it was necessary to examine by experts the claim of 102% anti-bacterial superiority of New Pepsodent over Colgate Dental Cream. It, however, transpires from the material on record that 102% superiority claimed by the respondent with respect to its New Pepsodent over Colgate Dental Cream is not confined only to anti-bacterial superiority. What is challenged before this Commission in the main matter is misleading advertisement about such claim. The validity of that claim has to be examined by the expert panel. We think that the claim is as to more effectiveness of New Pepsodent qua fighting germs than that of the leading toothpaste. So far as the consumer is concerned, this effectiveness has to be tested qua his oral health care. We think that mere laboratory test or study may not be sufficient for the purpose. It would be quite proper that the test is carried out in the light of some clinical study in the context of long-term plaque and gingivitis. We think that the claim of 102% superiority made by the respondent qua New Pepsodent over Colgate Dental Cream can best be examined if such tests are carried out. We think, we need not reiterate that the protocol to be adopted by the expert panel has to be determined by such expert panel and none else. We think that this order of ours shall clarify the position and the expert panel would go ahead with the task assigned to it and would submit its report as expeditiously as possible, preferably within 3-4 months' time from the receipt of this order.