The skincare industry in Nigeria has expanded significantly, and many consumers rely on vendors’ recommendations when purchasing skincare products. Some vendors act as informal skincare consultants and, therefore, they recommend products based on customers’ needs or desires confidently. However, when these recommendations do not work as recommended or lead to skin damage, the customers often blame the vendors. This article examines the vendors’ liability briefly in such a situation.
Under Section 14(1) of the Sale of Goods Act, where a buyer makes known to the seller the particular purpose for which a product is required and relies on the seller’s skill, knowledge or judgment, there is an implied condition that the goods shall be reasonably fit for such purpose. For instance, if a vendor recommends a product for acne treatment and it causes severe irritation, the vendor shall be liable for breaching this implied condition of fitness for purpose.
The Court of Appeal in Afrab Chem Ltd. v. Owoduenyi held that a seller may be liable if a product does not serve its intended purpose as communicated to the buyer. Additionally, Section 131 of the Federal Competition and Consumer Protection Act 2018 provides that goods sold to consumers must meet their intended purposes, good quality, usable, durable and free from defects.
Section 14(2) of the Sale of Goods Act states that goods sold must be of merchantable quality. In other words, the goods should be safe, effective, and free from any defect or encumbrance. Therefore, if a vendor sells a face cream or body lotion that is expired or contaminated, this could constitute a breach of this implied warranty. Consequently, a consumer can maintain an action and seek redress against the vendor for selling a product that is not fit for the stated purpose or unmerchantable.
But it is essential for consumers to note that where a product is sold under a patent or trade name, example ABC body lotion, the vendor will not be held liable if the consumer did not get what he likes or if it leads to damage. The pretty safe assumption of the law is that when you’re buying a product under its patent or trade name you’re aware of what you’re buying and, as such, you shall bear the consequences of your choice. In Bristol Tramways & Carriage Co Ltd v. Fiat Motors Ltd, the court held thus: “if a man orders, in express terms, an article known by a patent or trade name under that name, and he gets it, he cannot complain that it does not answer some specific purpose for which he wanted it, even though he told the vendor before he ordered the purpose for which he required it.”
Apart from contractual obligations, skincare vendors in Nigeria can be liable under the law of torts, particularly for negligence and misrepresentation. In celebrated case of Donoghue v. Stevenson, the House of Lords established the principle that sellers owe a duty of care to consumers. The authority of Okwejiminor v. Gbakeji reaffirmed that manufacturers and sellers can be held liable for negligence when their product causes harm to consumers. But to establish negligence in such a situation, the consumers must prove the following ingredients:
- Duty of Care: The vendor owed a duty to provide a safe and appropriate product.
- Breach of Duty: The vendor failed to exercise reasonable care in recommending the product.
- Causation: The breach caused the consumer harm (example, skin damage).
- Damage: The consumer suffered actual loss or injury.
Misrepresentation occurs when a skincare vendor makes false, misleading, or exaggerated claims about a particular product. Example: If a vendor falsely claims that a product is “100% natural” or it has a “lighting or whitening effect” but it turns out to be otherwise or contains harmful chemicals, this could amount to misrepresentation and, as such, consumers may have a right to sue for damages. Similarly, Section 132(2) of The Federal Competition and Consumer Protection Act makes it categorically clear that a consumer can return the goods he/she found to be unusable or not fit for its intended purpose within three months. The vendors are also mandated to either repair or replace the goods or refund the price paid by the consumer for the goods.
In conclusion, the liability of the skincare vendors in Nigeria depends on contractual obligations, tortious liability and consumer protection law. The consumers enjoy protection of the law against the vendors where products sold are not fit for the intended purpose or where they are not of merchantable quality. Similarly, where the vendors misrepresent products or sell them in violation of the provisions of the Federal Competition and Consumer Protection Act, they shall be held liable for any damage caused by their act. Therefore, the skincare vendors ought to be cautious and ensure that their recommendations are accurate and that products meet the fitness for purpose and merchantability requirements. However, where products are sold under their patent or trade names, the vendors shall not be held liable for anything.
Written by Musbahu Yahaya Rabiu, a graduate of the Faculty of Law, Bayero University Kano, and a bar aspirant. He can be reached for corrections or constructive criticism at 08107882404 or musbahuyahayarabiu@gmail.com
References
Statutes:
Sale of Goods Act
The Federal Competition and Consumer Protection Act
Judicial Authorities:
Afrab Chem Ltd. v. Owoduenyi (2014) LPELR-23613 (CA)
Bristol Tramways & Carriage Co Ltd v. Fiat Motors Ltd (1910)
Donoghue v. Stevenson [1932] AC 562
Okwejiminor v. Gbakeji (2008) 5 NWLR (Pt. 1079) 172