By:
Ajibola Bello, Esq.
The Nigerian social media space has recently been flooded with visual contents revealing the accounts of consumers discovering that certain products purchased from supermarkets and stores are fake. Video content of products such as Oral-B and Colgate toothpaste and Nivea roll-on being fake was posted by some accounts, while a woman was seen in another video pleading with Friesland Campina Wamco Co. as the maker of Peak Milk, Three Crowns Milk, Coast Milk and Nunu Milk, to respond to the findings of their products being bad and substandard. There was also another video content revealing substandard Capri-Sun drink, while several video contents have also exposed issues relating to the quality of water being supplied by CWAY. See links:
https://www.instagram.com/reel/Dd0lLwYsP4I/?stkn=MTIzMGhwN2NqM2p5Nw== https://www.instagram.com/reel/DdjHcuuC0Ue/?stkn=OGg2bm01cHh5Zzkz
Meanwhile, the Director General of National Agency for Food and Drugs Administration and Control (NAFDAC), recently in an interview, stated that there is about 30-40% prevalence of fake products in Kano State alone. These issues and so many more have raised the question of regulatory enforcement and place of liability where necessary.
While the issues in relation to the quality of product being made available for the Nigerian Consumers are quite dynamic and requires a wide range of regulatory and enforcement measures, this write up is specifically targeted at the prevalence of fake products sold by retail outlets to consumers. This delineation is important because dealing with a fake product that is produced by an entity different from the producer of the original product is different from dealing with substandard or adulterated product coming from the original manufacturer.
For clarity, a fake or counterfeit product ordinarily involves an unauthorised imitation or representation of another product, using trademarks, packaging or other indications of commercial origin of the main/original product. A substandard product, on the other hand, may originate from an identifiable manufacturer but fail to satisfy applicable safety or quality requirements, while an adulterated product may have been contaminated, diluted or otherwise altered by another entity in a manner that compromises its composition or quality as made by the original manufacturer.
The chain of commercial connection to a fake product can be wide in that the product may be produced by one entity, imported by another, stored by a wholesaler, distributed through another enterprise, displayed by a retailer and ultimately promoted through an online platform. Bearing this chain in mind, and because the fake product is only a substandard imitation, the question that arises is whether the manufacturer of the original product can be held liable in tort where a consumer suffer any injury from the use of the fake product that it did not manufacture. The answer to this is ordinarily in the negative. This is because, a manufacturer of the original product has no overt act in relation to the fake product.
To put it more clearly, a manufacturer is only liable in tort for what he manufactured and is expected to exercise duty of care in the course of manufacturing the product so that the consumer, who is identified in law as his neighbour, does not suffer any harm arising from what has been manufactured. In Donoghue v Stevenson [1932] AC 562, Lord Atkin propounded the “Neighbour Principle” which is to the effect that a person must take reasonable care to avoid acts or omissions which he can reasonably foresee would be likely to injure persons sufficiently closely and directly affected by his conduct.
With the manufacturer’s liability having been established in the above-mentioned case, it should be borne in mind that the duty of care with regards to sale and distribution of fake products that do not come from manufacturers of the original product should be borne by the wholesalers and retailers, who ought to exercise reasonable care in ensuring that the product they receive for sale are directly from the manufacturers of the original product in order to sustain the Neighbor principle. Once the wholesalers and retailers become complacent in identifying the source of, and the product they are receiving for distribution, they should take responsibility for any injury that a consumer who buys such product from their store suffers therefrom.
In exercising the duty of care, wholesalers and retailers should be responsible for detecting circumstances which create reasonable grounds for questioning a product’s authenticity or safety, including suspiciously low prices, altered packaging, missing regulatory information, inconsistent batch identification or an unreliable source.
For context, many Nigerian consumers would, for sake of ease and assurance of quality, prefer to shop for their groceries in standard stores such as H-Medix, Sahad, Market Sqaure, Ebeano, or Exclusive, to name a few. Meanwhile, any of these stores may have been infiltrated with a fake product and upon the consumer suffering an injury, such store may contend that it is not the manufacturer of the product. Indeed, going by the general Neighour Principle, it is the manufacturer who should bear civil liability, but in the case of fake product, the manufacturer can escape liability because the product is an imitation. Therefore, the wholesaler and retailer who collected the imitating counterfeit product from the “unidentifiable” entity that manufactured it should be responsible for civil liability towards the consumer for failing to exercise the duty of care. A commercial distributor should not escape responsibility by asserting that it did not manufacture the goods.
Having said that, it must be borne in mind that Nigeria has several regulatory framework for maintenance of standard product in the Market. However, the law is not specific on the civil liability of wholesalers and retailers with regards to fake and counterfeit products. For instance, Part XVI of the Federal Competition and Consumer Protection Commission (FCCPC) Act, and specifically section 134 regulates the duty of a manufacturer, importer and distributor of goods to ensure that the goods bear labels that will make the product easily traceable to the manufacturer, while penalizing the failure to so do. The loophole in this law is that the wholesalers and retailers have been left out, while it is more likely the case that the labels on fake product will only lead back to the manufacturer of the original, since the product is an imitation.
It is also important to state that the call for widening civil liability to extend to wholesalers and retailers, is more of a call to the judiciary who are creators and custodian of the common law principles including the Neighbour principle. In other words, our judges are urged to be ready to place liability on retail outlets, particularly the trusted supermarkets and stores such as those named above, where a consumer purchases a fake product from their retail outlets.
Accordingly, there may be no specific need for legislation in this regard before the Nigerian judges can start making pronouncements that will serve as a note of warning to the wholesalers and retailers who are complacent in their commercial dealings and whose breach of duty of care is serving as an enabler for perpetrators in the prevalence of fake and counterfeit products in the Nigerian Market.
This approach may also propel manufacturers to create means by which wholesalers and retailers can identify their original product, else, the retailer would not accept the product for sale to the public. Means such as use of scan code on the product or seal can assist consumers in identifying the original product.
This can also minimise the prevalence of fake product in the Nigerian Market as it would dissuade the perpetrators of the prevalence.
Ajibola Bello, Esq., is a Legal Practitioner and
Deputy Managing Partner, at
Law Corridor, Abuja.
ajibola@lawcorridor.org
ajibola.bello23@gmail.com
