Marketers, supermarket sued in pads, diapers advertising row

Have you ever seen an advertisement for sanitary pads, panty liners, tampons, and baby diapers indicating that they are soft and made from cotton?

Well, a case has been filed disputing what millions of Kenyans are told on television, radio, or the Internet.

Joseph Mwai, a lawyer, claimed in his case before the High Court Judge Chacha Mwita that the information provided for these crucial items for women was misleading and deceptive.

Mwai sued Procter and Gamble, which he claims supplies the Always brand of pads and Pampers. He also filed a case against Kimberly-Clark (Huggies) and retailer Carrefour.

He said the message is that the products are soft, like cotton, and safe for use by newborns and children.

However, he alleged that synthetic materials used have adverse effects, especially on children and women with sensitive skin. He stated that irritation and allergic reactions are among the issues.

“I am a father, husband, brother, uncle, friend, colleague, and even a grandfather who has over very many years, consistently consumed, used, and even gifted the products by the defendants while not being aware of the contents and ingredients and the process it takes to make them,” said Mwai.

He argued that marketers do not indicate the materials used to make diapers, tampons, or sanitary pads, allowing those who use them to make an informed decision about what to purchase.

"The respondents have, therefore, engaged in false advertising, misleading consumers to believe that their products are made of cotton or materials that are equivalent in comfort and safety, thereby violating the consumers’ rights to accurate information under Article 46 of the Constitution of Kenya, 2010,” he alleged.

In the case, he attached photos of sanitary pads and diapers. He claimed that olive oil was not present on the diapers, as the manufacturer had indicated.

The lawyer urged the court to examine the ingredients, the location, and the font. He claimed that the labeling is unclear and not legible enough, contrary to the Kenyan consumer law.

Mwai also looked for information on the marketers' websites. He claimed that Huggies does not include cotton in its ingredients.

The lawyer said that instead, it was indicated that the diapers are made from “Polypropylene, Superabsorbent (sodium polyacrylate), wood fluff pulp, polypropylene, polyester, and polyethylene absorbent padding.  

He said the diapers are also made from polypropylene and polyethylene fibers printed with colorants that have a nonwoven, breathable outer cover, polypropylene polyethylene fibers, a non-woven waistband, and leg elastics.

Others are polypropylene, synthetic elastics, a non-woven fastening system, adhesive and color-changing dye, and a color-changing wetness indicator.

“The defendants are culpable of deceptive imagery, for example in this YouTube advert by the third defendant (Pampers diapers) the baby is seen floating is a cotton field while the product has zero percent cotton,” he said.

He claimed that sanitary pads such as Always have 20 components that are not cotton-related but synthetic material.

Mwai argued that all the adverts and the actual products do not depict what they are made of.

He said the information on the materials used should be on the front side of the packaging and legible enough for the consumers to see.

Mwai cited a case in which the court ordered Coca-Cola to label the nutritional value on its glass soda bottles. He argued that diapers, pampers, and tampons do not have warning labels.

He asserted that advertising the items as cotton or cotton-like creates a false impression that they are made of cotton.

The lawyer said that the quality of the product is unclear as those who purchase them do not know about the synthetic products allegedly used.

“The defendants' conduct is unconscionable under Sections 56 and 57 of the Competition Act having have exploited the weaker bargaining position of consumers, particularly school-going girls and women, who rely on these products for their personal hygiene."

"By promoting these products as having cotton-like benefits without disclosing their true synthetic composition, the defendants have exerted undue influence on consumers, preventing them from making informed choices. The defendants' tactics are not only misleading but also unfair, as they impose conditions on consumers that are not reasonably necessary to protect the legitimate interests of the defendants,” he argued.

Mwai asked the court to bar marketers and the supermarket from advertising their products as they are. At the same time, he urged Justice Mwita to order them to re-do the labeling in compliance with consumer rights law.

The Judge ordered Mwai to serve the court papers.

The case will be mentioned on September 17, 2024.