RUAHA LAW REVIEW

(RLR)

Vol. 5-6, No. 1 (2017-2018)

Faculty of Law, Ruaha Catholic University

RLR Vol. 5-6, No. 1 (2017-2018)

ii

RUAHA LAW REVIEW

The Ruaha Law Review (RLR) is published two times per year. The RLR
publishes articles which deal with Public and Private Law, International and
Municipal Law with a special focus on legal issues relating to Africa.

It is hoped that the RLR will promote debate on current African legal
problems and it will, consequently, open new areas of research and enable
new questions to be asked so that the awareness of the role of justice in
human development may always grow.

The Ruaha Law Review welcomes the submission of contributions for

consideration by the editors with a view to publication. The RLR considers
contributions of varying lengths and styles. Authors must provide original
analysis and avoid summarizing previous research efforts. Articles should be
timely, readable to one who is unfamiliar with the topic, and contain
responsive and authoritative footnotes.

Thus, all contributions, correspondence, books for review and other

communications should be e-mailed to: [email protected]

But may also be posted to:

The Editors of the Ruaha Law Review,
Faculty of Law,
Ruaha Catholic University,
P.O. Box 774,
Iringa, Tanzania

Contributions to the Ruaha Law Review express the view of their authors
and not necessarily the views of the Board of Editors or Faculty of Law,
Ruaha Catholic University.

All rights reserved. No part of this publication may be reproduced,

translated, stored in a retrieval system, or transmitted in any form or by any
means, electronic, mechanical, photocopying, recording or otherwise,
without prior written permission of the publisher.

©2017-2018
Faculty of Law, Ruaha Catholic University
eISSN 2507-7939

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Administration of the Journal

The Principal Editor:

Dr. Lillian Mihayo Mongella

The Managing Editor:

Dr. Ana Luis

Editorial Board:
Prof. Andrew Mollel
Adv. RwezauraLadislausKaijage
Adv.Emmanuel Baruti
Mr. Isaack Nyimbi
Ms. Elizabeth Lulekelwa
Ms. Stella NyanahAhanor

The Advisory Board:

Prof. Dr. Simeon Kijanga Sungi,
The United States International University, Nairobi, Kenya
Prof. Frank Upham,
New York University School of Law, New York, N.Y. USA.
Prof. Dr. Gilbert Gornin,
Faculty of Law, University of Marburg, Germany.
Prof. Dr. Michael Kling,
Faculty of Law, University of Marburg, Germany.
Dr. Iur. Adrianna A. Michel,
Faculty of Law, University of Marburg, Germany.
Dr. Anthony Olagunju,
Faculty of Law, University of Lagos
Dr. Clement Mashamba,
Law School of Tanzania
Dr. Grace Kamugisha Kazoba,
Institute of Finance Management.

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ADMINISTRATIVE STRUCTURE OF THE FACULTY OF LAW,

RUAHA CATHOLIC UNIVERSITY

Dean
Dr. Lilian Mongella

Head of Department, Private Law

Ms. Schola Mality

Head of Department, Public Law

Ms. Justine Danda

ACADEMIC PROGRAMMES OFFERED BY THE FACULTY OF LAW,

RUAHA CATHOLIC UNIVERSITY
– Doctor of Philosophy (Ph.D) in Law: a three (3) year programme
– Master of Laws (LL.M) in Human Rights Law: a one (1) year
programme
– Master of Laws (LL.M) in International Criminal Justice: a one (1)
year programme
– Master of Laws (LL.M) in Trade and Finance Law: a one (1) year
programme
– Master of Laws (LL.M) in Finance and Banking Law: a one (1) year
programme
– Postgraduate Diploma in Law (PGDL): a one (1) year programme
– Specialized Postgraduate Diploma in Law (SPGDL): a one (1) year
programme
– Bachelor of Laws (LLB): a four (4) year programme.
– Diploma in Law: a two (2) year programme.
– Certificate in Law: a one (1) year programme.

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TABLE OF CONTENTS

Authenticity of Electronic Evidence: A Comparative Analysis

between the Position in Tanzania and Kenya
Prosper P. Tegamaisho …........................................................................... 1

Position of the Law on Consumer Protection against

Counterfeit Cosmetics in Tanzania
Nancy S. Lugeye & Ferdinand M. Temba............................................. 27

The Right to a Clean and Healthy Environment in Tanzania

and Its Legal Underpinnings.
Shaibu M. Pastory …..................................................................................... 63

Harmonising Tanzania Legal Framework With WTO Trade

Rules: How Far Is Tanzania Fairing?
Julius Cosmas & John Ombella................................................................. 83

Sentencing A Child For A Serious Crime In Tanzania: Do Child

Rights End When A Child ‘Behaves Like An Adult’?
Seraphina M Bakta....................................................................................... 103

The Influence of Intergovernmental and Multinational

Initiatives on Preservation of Mine-Host Communities’
Culture: A Reflection of Selected Initiatives
John Ombella .................................................................................................. 123

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RLR Vol. 5-6, No. 1 (2017-2018)

 POSITION OF THE LAW ON CONSUMER PROTECTION AGAINST
COUNTERFEIT COSMETICS IN TANZANIA

Nancy S. Lugeye & Ferdinand M. Temba

ABSTRACT

This article centres its analysis on the role played by consumer

protection laws in setting down and enforcing the rights of consumers
against counterfeit cosmetics in Tanzania. It starts by highlighting the
development of consumer protection law; the review of the governing
law; and its enforcement machineries. This is achieved through
extensive deskwork and interviews conducted in Morogoro
Municipality. Principally, this article employs both doctrinal and
empirical research.
The article submits that most of the consumers are not aware of
the specific laws applicable to specific issues related to their
protection as consumers of cosmetics. This later makes the study to
conclude that consumers have a low level of awareness regarding
their rights as consumers; and are unaware of the legal remedies
protecting them against counterfeit cosmetics. This has caused
counterfeiters escape investigation and prosecution for the supply
and sale of counterfeit cosmetics under the available legal regimes.

 LL.B Mzumbe University; Email: [email protected]; Cell No. +255 767

374413.
 LL.B Mzumbe University; LL.M (Labour Law) University of Cape Town; PhD (Law)
Candidate University of Dar es Salaam; Lecturer, Faculty of Law, Mzumbe
University; Advocate of the High Court of Tanzania and Subordinate Courts
thereto save for Primary Courts; E-Mail: [email protected]; Cell Nos +255
714552299/+255 784 155099.

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1. Introduction

This article makes the analyses of consumer protection laws in

Tanzania. It centres its analysis on the role played by consumer
protection laws in setting down and enforcing the rights of
consumers. It reveals that, generally laws on consumer protection
performs numerous preventive and protective roles for consumers by
among others prohibiting unfair or misleading trade practices; setting
standards for quality, safety and reliability of many goods and
services so that failure to comply with these standards result in legal
action against the service provider. It further submits that every
person is a consumer in his capacity as a buyer of commodities or
services.
Specifically, this article examines the protection of consumer’s
against counterfeit cosmetic products, by starting with the review of
the governing law and its enforcement machineries. It starts by
defining key terms which are important in understanding the law of
consumer protection. The article later provides the background
information on the development of consumer protection laws in
Tanzania. It categorically states that consumer protection is regulated
by diverse laws making the protection a difficult task. That there is
confusion or fragmentation of the law with regards to consumer
protection. It is nonetheless submitted that consumer protection law
seeks to equip consumers with knowledge about the goods and
services they buy so that they can make informed decisions about
their purchase.

1.1 Methodology

This article is informed by extensive deskwork and interviews

conducted in Morogoro Municipality as the pilot area to ascertain the
position of consumer protection against counterfeit cosmetics.
Additionally, the study was of a critical character, employing both
doctrinal and empirical research. In that case, the study was
conducted in two stages, namely library research and field research
where primary data and secondary data were collected. Through
library research, the study involved reading of treaties, policy, and
legislation, books, academic articles, journals and all related literature
on consumer protection against counterfeit cosmetics.

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 Consumer Protection Against Counterfeit Cosmetics in Tanzania 29

As for field research, the study conducted interviews as a method

of data collection. The interviews were conducted in Morogoro
Municipality on consumer protection against counterfeit cosmetics in
the country. It is of vital importance to state at this juncture that, the
study was conducted involving male and female respondents in order
to avoid bias in getting relevant information. In that case, during
collection of information, respondents were required to state their
gender, which ended to have the number of 24 females and 16 males;
making a great number of respondents featured to be females. It is
noteworthy to state that, the study categorised the respondents
according to their age, which ultimately resulted in the age
composition of respondents. Accordingly, five (5) respondents were
under 25 years of age; respondents with the age from 26-40 years
were 15; respondents with the age of 41- 55 years were 15; and the
last age category of respondents were those with the age above 55
years which comprised of only 5 of the respondents.

1.2 Conceptualisation of Consumer and Consumer Protection

Consumer as the term implies the one who consumes. 1 Thus,

consumer is a person (natural or artificial) who consumes goods
and/or services individually or socially, i.e. productively.2 Consumer
is a broad term that refers to any individuals or households that use
goods and services generated within the economy.3 Every citizen is a
consumer in his capacity as a buyer of commodities or services since
has the ability to pay for the product and possesses the power to make
buying decisions. 4 Therefore, consumer is designated as a king
(sovereign) of the market.5 Consumer can further be defined as ‘the
user of goods and services’ and the word ‘user’ have been extended to
mean all persons who are affected by the use of goods or services by

1 S. R. Myneni, Consumer Protection Law, 1st Edition, S. P. Gogia (H.U.F), Hyderabad,

2010, 28
2 N.N., Nditi, Efficacy of Legal and Institutional Framework Relating to Consumer
Protection in Tanzania, 42 Eastern Africa Law Review, 1, (2015), 154.
3 Myneni, supra note 1, 28.
4 Idem.
5 Idem.

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30 Lugeye & Temba

another.6 According to the Fair Competition Act consumer is defined

as:
Any person who purchases or offers to purchase
goods or services and includes any user or beneficiary of
such goods or services otherwise than for the purpose of
the sale, but does not include a person who purchases or
offers to purchase any goods or services for the purpose
of production or manufacture of any goods or articles for
sale.7

The definition excludes anyone who acquires goods for resale or

reproduction and/or manufacturing.8 Technically, the term consumer
means the person who may suffer loss or injury from the consumption
or use of goods and services. 9 Therefore, consumer is a person to
whom goods or services are marketed, and/or who enters into a
transaction with the supplier or seller, and who is the user of goods
or the recipient/beneficiary of services.10
The term consumer protection is not provided for in the Tanzanian
Fair Competition Act. Other sources have, nonetheless, defined the
term consumer protection. To start with, consumer protection is
defined as all those measures that serve to protect the consumer’s
interest in goods and services. 11 It encompasses both a preventive
and a remedial aspect. The preventive aspect of consumer protection
includes measures that regulate the supply and quality of goods and
services while the remedial aspect encompasses all those measures
that provide for remedies for those whose interests have been
trampled on.12 It is a phenomenon that is associated with the growth

6 C. Mpaka, Consumer Protection, Oxford University Press, Nairobi, 1992, 2.

7 The Fair Competition Act, 2003, Section 2.
8 Unpublished: T. Mwenegoha, “The Development of Consumer Protection Laws in
Tanzania for Electronic Consumer Contracts,” Unpublished Doctor of Philosophy
(PhD) Thesis, Faculty of Law, Bond University 2015, 47.
9 Nditi, supra note 2, 154.
10 K. Du Toit, & E. van Eeden, The Impact of the Consumer Protection Act on
Pharmacists 104 The South African Medical Journal, Volume, 11 November
(2014), 739.
11 Mpaka, supra note 6, 2.
12 Unpublished: N. S. Lugeye, “An Examination of Consumer Protection against
Counterfeit Cosmetics in Tanzania: The Case of Morogoro Municipality,”
Unpublished LL.B Research Report, Mzumbe University, June 2017, 24.

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 Consumer Protection Against Counterfeit Cosmetics in Tanzania 31

of markets as the medium for economic growth.13 Economic theory

assumes markets as the forum where sellers meet buyers, or rather,
where suppliers generally meet consumers of goods and services.14 It
follows therefore that, while the suppliers of goods and services vie
for the attention of buyers, a competitive scenario is generated and
left to their own devices suppliers employ every trick possible,
positive and negative, to win the buyers’ attention. 15 Due to these
tricks employed by suppliers and sellers to gain the attention of the
consumers and buyers to purchase their goods, there developed a
need for consumer protection laws. Therefore, consumer protection
stems from the need for consumers to have what they want, at a
reasonable price, without danger or inconvenience.16 The existence of
the weak position of consumers relative to businesses, compounded
by the principles and doctrines such as caveat emptor, which were
detrimental to consumers, made the development of the laws of
consumer protection a necessity.17
Consumer protection laws entails ‘the sum total of the ways in
which a state constitutes, defines and intervenes in markets for the
purpose of protecting the ultimate consumer of good and services.’18
They deal with market transactions as well as non-market issues, but
touch or impact on the welfare of consumers.19 The United Nations
Guidelines for Consumer Protection (the UN Guidelines) has spelt out,
among other things that consumer protection policies of the UN

13 Unpublished: C. M. Resto, “Consumer Protection under the Tanzania

Telecommunication Laws, Policy and Regulations: A Case Study of Tanzania
Communications Regulatory Authority,” Unpublished Dissertation of Masters of
Law in Information Technology and Telecommunication (LLM IT & T), Open
University of Tanzania, 2011, 4.
14 Lugeye, supra note 12, 24.
15 R.W. Tenga, “Consumer Protection Model and Tanzania Legal Compliance
Framework – With some Reference to the Communications Sector” National
Consumer Advocacy Council, Tanzania, 2009, 1.
16 J. Goldring, The Choice Edition of Consumer or Victims? A Guide to Consumer
Protection Law in Australia, Allen & Unwin and the Australian Consumers’
Association, Sidney 1988, 3.
17 B. W. Harvey & D. L. Parry, The Law of Consumer Protection and Fair Trading, 3rd
edn, Butterworths, 1987, 13.
18 I. Ramsay, (ed), Consumer Law: The International Library of Essays in Law & Legal
Theory Areas 6, Dartmouth Publishing, 1992, xi.
19 Lugeye supra note 12, 24.

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member states should promote economic efficiency and uphold

consumer rights to just, equitable and sustainable socio-economic
development and environmental protection. 20 The UN Guidelines
further states that, those policies should address matters including
provision of consumer education and information programmes and
development of autonomous consumer associations and the need for
encouraging sustainable consumption. 21 Consumer consultation,
participation or involvement in public policy making and
implementation are among the key components of consumer
protection schemes envisaged by the UN Guidelines.22
Consumer protection, in the broader sense, therefore, refers to the
laws and regulations that ensure fair interaction between service
providers and consumers.23 The growth of markets poses challenges
on every sector of the economy in terms of demand, production and
supply of goods and services and therefore calls for designing
approaches of addressing consumer protection issues. Consumer
protection laws seek to protect and promote national interest and
national standards through correcting failures in the market
system.24 From the foregoing discussion, consumer protection can be
defined as the government intervention and regulation of suppliers
and sellers on the one hand; and consumers and buyers on the other
hand, to achieve transparency and awareness about the goods and
services; promotion of fair competition in the market; prevention of
fraud and unfair trade practices; as well as provision of education to
customers. It intends to protect consumers against unfair trade
practices and unequal bargains.

20 United Nations, United Nations Guidelines for Consumer Protection, New York:
United Nations, 2003, 1.
21 Ibid, 5-7.
22 Ibid, 7.
23 Consumer Protection Laws and Regulations in Deposit available on
http://www.cgap.org/sites/default/files/CGAP-Consumer-Protection-Laws-
and-Regulations-in-De (Accessed on 15/3/2017).
24 Mwenegoha, supra note 8, 51.

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1.3 Cosmetics Defined

Cosmetics is anything that can be applied on the skin or any part

of the human body by smearing, washing or spraying for the purpose
of cleaning, beautification, decoration, skin enlightenment or change
in appearance.25 The Tanzania Food, Drugs and Cosmetics, Act 2003
defines cosmetic to mean any article intended to be used by means of
rubbing, pouring, steaming, sprinkling, spraying on or otherwise
applied to the human body or any part thereof for cleansing,
beautifying, promoting attractiveness or altering the appearance and
includes any article intended for use as component of a cosmetic.26
The law further states that such articles which are used as cosmetics
exclude articles intended, besides the above purposes, for use in the
diagnosis, treatment or prevention of diseases and those intended to
affect the structure or any function of the body. 27 Therefore,
cosmetics are not supposed to be used in the diagnosis of diseases,
treatment or preventing diseases and when applied they are not
supposed to impair the normal functions of the skin or body.28

1.4 The Concept of Counterfeit Products

Counterfeit products are a global phenomenon and a major

marketing challenge in the modern societies. Counterfeit products are
imitations of the real products.29 They are unauthorized imitations of
branded goods intended to be passed off for an original with the
purpose of defrauding or deceiving the consumer of the said product
into believing that it is the original product. 30 Additionally,

25 Tanzania Food and Drugs Authority, Ten Years of Regulating Food, Medicines,
Cosmetics and Medical Devices: Milestones Attained 2003-2013, 38; Available on
https://www.tfda.go.tz/index/?q=node/140 (Accessed 06/09/2017).
26 Tanzania Food, Drugs and Cosmetics, Act 2003, section 3.
27 Idem.
28 Tanzania Food and Drugs Authority, supra note 25, 38.
29 A. O. J. Kaniki, Proliferation of Counterfeit Products in Tanzania: A Threat to
Human Security, 1 The Tanzania Lawyer, 2 (2014), 43.
30 The Confederation of Tanzanian Industries (CTI), Position Paper on Effects of
Counterfeit and Substandard Goods on the Tanzanian Economy: The Case of
Manufacturing Sector, 20th April 2008, 3.

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34 Lugeye & Temba

counterfeit products can be defined as something that is forged,

copied or imitated without the perpetrator having the right to do it
and with the purpose of deceiving or defrauding. 31 A counterfeiter
causes the owner of the brand name to effectively lose a customer by
misleading the said customer into purchasing a counterfeit good (in
most cases substandard) in the belief that he is purchasing the
genuine article.32 In that effect, counterfeiters have put severe burden
on the companies which produce genuine products, as they grapple
with the intricate challenge of safeguarding the integrity of their
products, protecting intellectual property rights and market
positioning.33 Counterfeiting is an infringement of the legal rights of
an owner of intellectual property rights. 34 Therefore, counterfeit
cosmetics can be defined as imitations of branded cosmetics which
intend to deceive the consumer. Counterfeit cosmetics cause financial
and health problems to consumers and owners of the branded
cosmetics.

1.5 Consumer Rights and Obligations

Consumer protection seeks to prevent the violation of consumer

rights. These rights include, right to satisfy basic needs; right to safety
and security; right of choice; right to be heard; and right to redress.
Besides, consumers have the right to a healthy environment; right to
protection of the quantity of goods and services; right to information;
and right to consumer education. 35 Moreover, consumers have
obligations to educate himself about consumer rights and
responsibilities; obligation to know the complaint process in case his
rights are violated; obligation to boycott illegally manufactured

31 O. Aregbeyen, An Investigation of the Severity, Causes, Impact and Action against

Counterfeiting and Smuggling in Nigeria, 3 Mediterranean Journal of Social
Sciences 1 (2012), 381.
32 The Confederation of Tanzanian Industries (CTI), supra note 30, 3.
33 N. Hamelin, et al, ‘Faking brands’: Consumer responses to counterfeiting 12
Journal of Consumer Behaviour, (2013), 159.
34 Aregbeyen, supra note 31, 381.
35 For thorough insight on the consumer rights see Nditi, supra note 2, 155-161.

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 Consumer Protection Against Counterfeit Cosmetics in Tanzania 35

goods, counterfeit and fake products such as cosmetics; and

obligation to ensure safety of the environment.36

2. Development of the Law on Consumer Protection in

Tanzania

Consumer protection laws in Tanzania can be explained based on

the nature of economic policies which characterised the country
before and after independence. After independence, Tanzania has
passed through three major economic epochs. From 1961 to 1966 the
economy of the country was based on free market economy.37 This
was followed by the adoption of the state controlled or centralised
economy which was introduced by Arusha Declaration of 1967; and
it lasted from 1967 to 1985.38 Following the Structural Adjustment
Programmes (SAP) which characterised the world economy after the
introduction of trade liberalisations and privatization, the national
economy reverted to free market economy from 1986 onwards.39 The
passing of these three economic epochs, have to a large extent
affected the position of the law on consumer protection in Tanzania.
Tracing the development of the consumer protection law, this
article considers the role played by the colonial government in
enacting the Control of Price Ordinance of 1920 as the origin of
consumer protection in Tanzania.40 The Control of Price Ordinance
made it an offence to either sell or offer for sale or buy or offer to buy
any price-controlled articles at a price exceeding the fixed maximum
price. 41 In that case, the prices were fixed so as to protect the
consumers of goods from the possible high price set by the suppliers
and sellers. The Control of Price Ordinance of 1920 was repealed and
replaced by the Regulation of Prices Act of 1973. 42 This was made
possible after the country entered the Ujamaa ideology, which was

36 Ibid., 161.
37 Unpublished: B. F. Kanyabuhinya, Legal Challenges in Addressing Counterfeit
Goods in Tanzania Mainland: The Right of Consumer Redress, Unpublished
Doctor of Philosophy (PhD) Thesis, University of Dar es Salaam, 2014, 81.
38 Idem.
39 Idem.
40 Cap. 110 of the laws of Tanganyika Vol. II.
41 Ibid, sections 3, 4 and 9.
42 Act No. 19 of 1973.

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36 Lugeye & Temba

embedded in everyday life of people and influences the way

consumers’ trade. 43 Ujamaa ideology shaped the consumer
protection regime and the current consumer protection status in the
country. 44 The 1973 law protected small entrepreneurs and
consumers in the markets by setting rules to determine prices in the
markets. The following year i.e. 1974, the National Price Commission
(NPC) was established as per the law to ensure protection of
customers in the market.45 The NPC was vested with powers to fix
prices of any goods of the manufacturer in Tanzania and also it had a
duty to fix maximum services charge that may be made for any
service. 46 In addition, NPC had power to receive and review
applications in respect of prices from any user or consumer or from
any public authority.47 A price control system was administered by
the NPC which controlled major means of production by fixing prices
for all major services and commodities and keep check on
monopolies.48 This was achieved as the Act was enacted at the time
when Ujamaa policy was at its peak. The NPC, therefore functioned to
determine reasonable price structures on a national basis and
provide for their orderly variation when necessary; ensure that,
prices of goods and services in Tanzania are compatible with and
conform to the principles of socialism and the political, economic and
social aspirations of the people of the United Republic and to perform
such other functions as are conferred on it by this Act or as the
President may from time to time confer upon it.49 However, the state
controlled economy under the Regulation of Prices Act of 1973
deteriorated towards the first half of 1980s and by late 1980s major
economic reforms became inevitable.
Change of economic policies which found the country moving from
Ujamaa ideology to market related policies in 1986 is one of the
contributing factors leading to poor consumer protection status in the

43 Mwenegoha, supra note 8, 29.

44 Idem.
45 The Regulation of Price Act No. 19 of 1973, section 3.
46 Ibid, section 8.
47 Ibid, section 13.
48 E. Laltaika, Legal and Institutional Aspects of Fair Competition in Tanzania, 5
Open University Law Journal, 1, (2014), 59.
49 The Regulation of Price Act No. 19 of 1973, section 6.

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 Consumer Protection Against Counterfeit Cosmetics in Tanzania 37

country. 50 The government repealed the laws inclining to Ujamaa

policies by setting the legal framework of consumer protection which
suited the market economy. This was made possible after the
government established a task force in the 1990’s to study the
economies of developed countries and advise it on regulating
competition while protecting consumers. 51 The task force
recommended for the repeal of the Regulation of Prices Act of 1973
and replacing it with the Fair Trade Practices Act of 1994 which
borrowed concepts and provisions from the competition laws of
Australia, Jamaica, Kenya and Canada. 52 The Fair Trade Practices Act
of 1994 encouraged competition in the economy by prohibiting
restrictive trade practices, regulating monopolies, concentration of
economic power and prices, to protect the consumer and to provide
for other related matters. The Fair Trade Practices Act had many
flaws as it concentrated many powers to the Minister responsible for
commerce (Minister). The minister has the power to review the
structure of production and distribution of goods and services in the
country; the power to fix maximum prices for the sale, either
wholesale or retail, which may include charges for packing and
delivery, of any goods; and the power to declare the method by which
the cost of any goods or of any service shall be determined, and may
in such order declare different methods of determining the cost in
respect of different classes of goods, transaction or sellers.53 With this
concentration of powers to the Minister, a significant change within
the legal regime on consumer protection and competition law was
required, hence the repeal of the Fair Trade Practices Act and replace
it with the Fair Competition Act, 2003.
The Fair Competition Act, 2003 made substantial changes,
including abandonment of the powers of the Minister to fix prices on
particular goods and services and in its place established institutions
for regulating competition and consumer protection. The Fair
Competition Act was enacted with the object of enhancing the welfare
of the people of Tanzania as a whole by promoting and protecting

50 Mwenegoha, supra note 8, 29.

51 Laltaika, supra note 48, 59.
52 Ibid citing Musonda, F., “Competition Law and Policy in Tanzania” available at
http://competitionregimes.com/pdf/Book/Africa/56-Tanzania.pdf .
53 The Fair Trade Practices Act, 1994, sections 31, 42 and 44.

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38 Lugeye & Temba

effective competition in markets and preventing unfair and

misleading market conduct throughout the country.54 This is done for
the sake of increasing efficiency in the production, distribution and
supply of goods and services; promoting innovation; maximising the
efficient allocation of resources; and to protect consumers. 55 Apart
from the Fair Competition Act of 2003, which is the main consumer
protection law in Tanzania, there are other laws protecting
consumers of diverse products in Tanzania. As for the regulation of
cosmetics and consumer protection against counterfeit products, the
legal framework is set under the Tanzania Food, Drugs and Cosmetics
Act, 2003. This Act was enacted to provide for the efficient and
comprehensive regulation and control of food, drugs, medical devices,
cosmetics, herbal drugs and poisons. Other legislation such as the
Merchants Marks Act, the Standard Act, the Sale of Goods Act and the
Penal Code forms part of the discussion of this article as they set the
legal and institutional framework for consumer protection against
counterfeit goods.
This article centres its discussion on business malpractice which
characterise private property in relation to the protection of
consumers of cosmetics against counterfeit cosmetics. Thus business
malpractices in manufacture; supply and sell of counterfeit cosmetics,
call for a study of the protection of the consumer of those cosmetics.
It is important to protect the consumer of counterfeit products such
as cosmetics because looking at the supply chain of these products;
consumer remains a weaker part in the transaction involving him
with the manufacturer, supplier and seller.

2.1 Legal and Policy Measures for Consumer Protection

against Counterfeit Cosmetics in Tanzania

There are several laws that directly or indirectly protect the

consumer in Tanzania. This article centres on the legal and policy
framework that protect consumers of cosmetics in Tanzania against
counterfeit cosmetics. An array national legislation and policy are
examined to determine their sufficiency or otherwise, for the

54 The Fair Competition Act, 2003, section 3.

55 Ibid, section 3 (a) – (d).

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 Consumer Protection Against Counterfeit Cosmetics in Tanzania 39

protection of the consumers in the country. From the position of the

Constitution of the United Republic of Tanzania, the protection of
several rights such as the right to life as per Article 14; and right to
freedom of opinion and expression of ideas as per Article 18 rhymes
in the same tune with the rights of consumers.

2.1.1 National Trade Policy

The National Trade Policy was adopted with an objective to enable

the country to identify ways and means of navigating through a viable
and steady path towards competitive export-led growth for the
realisation of the goal of poverty eradication. 56 Through National
Trade policy, Tanzania committed itself towards one direction of
change, i.e. trade liberalization based on selective and a gradual
process. 57 The National Trade Policy seeks to realise domestic
market considerations, the international environment and re-
orientation towards trade development. In the domestic market
considerations, this trade policy seeks to enhance Tanzania’s
economic growth, which addresses Tanzania’s key priority of poverty
eradication associated with firm closures, loss of jobs, incomes. 58
Openness to trade is positively related to growth and growth is the
prime requirement for poverty eradication.59
In relation to consumer protection, the policy submits the
existence of constraints and challenges related to competition policy
associated with the problem of concentration of economic power that
can arise from market imperfections, monopolistic behaviour in
economic activities and consequent restrictive business practices.60
The presence of restrictive business practices primarily affects the
consumer through either higher prices and unacceptable quality
standards or limitations on the availability of goods and services.
With the adoption of Competition policy, therefore, it aims at
perpetuating freedom of trade, freedom of choice and access to

56 United Republic of Tanzania, National Trade Policy: Competitive Economy and

Export-Led Growth, Dar es Salaam: Ministry of Industry and Trade, 2003, 1-2.
57 Ibid at p. 2.
58 Ibid at p. 8.
59 Ibid at pp. 1- 9.
60 Ibid at p. 22.

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40 Lugeye & Temba

markets.61 This policy provides a broad mandate of the government

to take measures to address issues of consumer protection against
counterfeit products. 62 It is nonetheless submitted that, the
objectives of the policy remain dependent upon the enactment of
legislation for its implementation.63

2.1.2 The Fair Competition Act

This Act was preceded by the Fair Trade Practices Act.64 Fair Trade
Practices Act encouraged competition in the economy by prohibiting
restrictive trade practices, regulating monopolies, concentrations of
economic power and prices and to protect the consumer. The Fair
Competition Act 2003, which came into force in 12th May 2004
through the official government gazette GN No. 150 of 2004, seeks to
promote and protect effective competition in trade and commerce
and also to protect consumers from unfair and misleading market
conducts. 65 Also the Act provides for the means to ensure that
consumers are protected from the possible healthily property hazard
which can result from the presence of low quality goods and service
in the market which can harm the consumers. 66 The Act addresses
numerous aspects regarding the consumer protection.
Part III of the Act prohibits misleading or deceptive conduct,
specifically in its section 16. However, the key terms ‘false’ and
‘misleading’ are not defined anywhere in the Act making it difficult for
a consumer to tell whether a representation is false or misleading.
Since the consumer is poor, ignorant and credulous person, the law
requires the Commission in determining whether a person has
contravened the provisions of the law, to have regard to the strength
of the bargaining positions of the parties, the validity of the
conditions, the consumer understanding of documents and the
circumstances.67

61 Idem.
62 Kanyabuhinya, supra note 37, 95.
63 Idem.
64 Cap. 285 [R.E. 2002].
65 The Fair Competition Act No. 8 of 2003, section 3.
66 Ibid, sections 38(1) (a) and 49.
67 Nditi, supra note 2, 169.

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In addition, the Act covers issues related to manufacturer’s

obligations under Part VII of the Act. The law provides that the
Manufacturer may face different action for the supply of goods to the
consumers in respect of unsuitable goods, false descriptions, supply
of goods of unmerchantable quality, actions in respect of non-
correspondence with samples and actions in respect of non-
compliance with an express warranty. 68 Also, a right of seller to
recover against manufacturer or importer is provided within the
Act.69
Meanwhile, Product Safety and Product Information is covered
under Part VIII of the Act whereby a duty of giving notice to the public
of any goods or product which are suspicious to be not good for
human consumption is imposed. However, notice itself is not enough
but also thorough investigation of the product should be conducted.70
Furthermore, the Act has enacted provisions for Offences, Penalties
and Remedies under Part X whereby the Law makes the possibility of
consumers to take legal action against offending service providers,
with the view of ensuring that consumers get their value for money
and are compensated when the need arises.71
Also, there is the establishment of the Commission and Tribunal
under Part XI, XII and XIII of the Fair Competition Act, 2003. Part XII
of the Act establishes the Fair Competition Commission, which shall
be independent and shall perform its powers independently and
impartially without fear or favour. 72 Appointment of members,
removal of members as well as the functions of the Commission is
provided under sections 63 to 65 of the Fair Competition Act, 2003.
On the other hand, part XIII of the Act establishes the Fair competition
Tribunal. 73 The Tribunal has jurisdiction over matters stipulated
under section 85 (1) (a) – (d) of the Fair Competition Act, 2003.
Therefore, parties to an appeal may appear before the tribunal either

68 The Fair Competition Act No. 8 of 2003, sections 38 – 41, and 43.
69 Ibid, section 44.
70 Ibid, sections 48-50.
71 Ibid, section 57, 59 and 60.
72 Ibid, section 62.
73 Ibid, Section 83.

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in person or by an advocate and the costs of the appeal shall be at the

discretion of the Tribunal.74
Apart from the Commission and Tribunal as established by the Act,
Part XIV of the Fair Competition, 2003 establishes the Council to be
known as the National Consumer Advocacy Council is established.
The Council shall consist of not less than five members and not more
than ten members appointed by the minister. 75 In carrying out its
functions the Council shall represent the interest represent the
interests of consumers by making submissions to, the providing views
and information to and consulting with the Council, regulatory
authorities and government ministries, receive and disseminate
information and views on matters of interest to consumers, establish
regional and sector consumer committees and consult with them and
consult with industry, government and other consumer groups on
matters of interest to consumers. 76 Also, the council shall hold
meetings at least four times in any period of twelve months.77
Moreover, this article submits that there is a major amendment to
the Fair Competition Act of 2003 introduced by the Fair Competition
(Amendment) Act of 2015.78 The amendment had a view to making
better provisions for effective implementation and enforcement of
the Fair Competition Act, 2003, by renaming the principal legislation
from the Fair Competition Act to the Fair Competition and Consumer
Protection Act. 79 Also, the amendment of 2015 deleted the phrase
‘Fair Competition Commission’ wherever it appears in the Act and
substituted for it the phrase ‘Fair Competition and Consumer
Protection Commission.’ 80 However, the amendment of 2015 also
deletes the phrase ‘Fair Competition Tribunal’ appearing on the
definition of the ‘Tribunal’ and substituting for it the phrase ‘Fair
Competition Appeal Tribunal.’ 81 So the FCCC is the tribunal vested

74 Ibid, section 90 (1) and (2).

75 Ibid, section 92.
76 Ibid, section 93.
77 Ibid, section 94(1).
78 A note has to be taken that despite the fact that the Law was amended two years
ago, to date it has not come into force.
79 The Fair Competition (Amendment) Act, 2015, section 3.
80 Ibid, section 2.
81 Ibid, section 4 (a).

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with original jurisdiction to trial matters of competition. If a party is

not satisfied with its decision, then an appeal can be lodged to the
FCAT.
This 2015 amendment has also provided that the decision from the
FCAT is not final and conclusive thus appealable to the Court of
Appeal on points of law. Therefore, it is safe to say that the Fair
Competition Act of 2003 was not free from weaknesses as a result the
enactment of the Fair Competition (Amendment) Act of 2015 which
may be accepted to be a modern law.

2.1.3 The Tanzania Food, Drugs and Cosmetics Act

This Act was enacted in 2003 not necessarily as consumer

protection legislation, but to provide for the efficient and
comprehensive regulation and control of food, drugs, medical devices,
cosmetics, herbal drugs and poisons. The Act establishes the authority
known as Tanzania Food and Drugs Authority (TFDA). 82 TFDA is
established as the regulatory body for the products such as cosmetics.
In particular it functions to regulate all matters relating to quality and
safety of cosmetics; to prescribe standards of quality in respect of
products regulated under this Act, manufactured or intended to be
manufactured or imported into or exported from the United Republic;
and attend to and, where possible, take legal measures on complaints
made by consumers of cosmetics against manufacturers of products
regulated under this Act. 83 The law further states that, in the
performance of its functions, TFDA shall as far as is practicable,
maintain a system of consultation and cooperation with other
authorities with similar functions of consumer protection such as the
Tanzania Bureau of Standards established by Standard Act.84
Additionally, the law provides for the powers of the TFDA which
includes the powers to enter or remove any name from any register
prescribed under this Act or, subject to such conditions as the
Authority may impose, restore it thereto; and condemn and order
destruction or disposal in any way any product regulated under this

82 The Tanzania Food, Drugs and Cosmetics Act No. 1 of 2003, section 4 (1).
83 Ibid, section 5 (1) (a), (i) and (p).
84 Ibid, section 5 (2) (d).

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Act, cosmetics inclusive, found to be unfit for its intended use. 85

Noteworthy, the article submits that, apart from the functions and
powers of the TFDA in relation to the regulation of cosmetics and
consumers of cosmetics in Tanzania, Part V of the Act enacts
provisions regarding cosmetics. To wit, the Act restricts the
manufacture, importation and distribution of cosmetics. 86 It also
provides for the prohibited ingredients and prohibits the
manufacture and sale of certain cosmetics as well as counterfeit
cosmetics.87
The greatest challenge that is facing the Tanzanian consumer
today is the area of fake and adulterated food, drugs and cosmetics
that have effects on the health of the consumers. The article reveals
that TFDA in collaboration with other agencies with similar functions
for consumer protections such as TBS strives to create consumer
awareness of the existence of counterfeit products and taking steps to
destroy them.88 The suppliers and sellers who are prosecuted for the
supply and sell of counterfeit cosmetics are penalized in accordance
with the provisions of the Tanzania Food, Drugs and Cosmetics Act so
as to deter others. 89 Additionally, the Tanzania Food, Drugs and
Cosmetics Act, while appears to be comprehensive in dealing with
issues related to the supply and sell of counterfeit cosmetics
henceforth protecting consumers, still faces challenges such as
lenient penalties which as the result makes it ineffective.90 Besides, it
is provided by the Act that, before TFDA destroys products harmful
for human health, such as counterfeit cosmetics, there must be a court
order to that effect. This is arguably making the process prolonged,
therefore defeating deterrence objective intended to be realised of
stopping the supply and sell of counterfeit cosmetics.91

85 Ibid, section 6 (a) &(c).

86 Ibid, section 86.
87 Ibid, sections 87, 89 and 90.
88 Findings of the Interviews conducted in Morogoro from August to September
2016.
89 Lugeye, supra note 12, 40.
90 Kanyabuhinya, supra note 37, 110.
91 Idem.

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2.1.4 The Standards Act

This Act establishes the Tanzania Bureau of Standards (TBS) which

shall be the custodian and an overseer of observance of standards in
Tanzania. 92 TBS has main functions to formulate, determine or
modify, endorse and enforce standards for commodities and code of
practice.93 Other functions of TBS, which are of specific relevance to
consumer protection are to enforce standards in the protection of
public against harmful ingredients, dangerous components and
shoddy materials, to provide for testing of locally manufactured or
imported commodities conform to the standard specifications.94
Also, the Act established the Standards Council to award
certification marks to manufacturers whose products do not only fall
within those standards but are also of importance to the national
economy.95 General penalty is also provided in the Act where a person
contravenes with any provisions of the Standards Act. 96 The Act is
thus of particular relevance to the consumers in that it regulates
goods and service standards and ensures that substandard products
are not sold to the consumers. There is no doubt that the law will
continue to be relevant to the protection of the consumers in the era
of deregulation the consumer’s interest.
The study noted that indeed the consumer may benefit from the
effective implementation of the functions of the Bureau. However, it
seems the consumer is just a side beneficiary of the Standards Act. The
term ‘consumer’ is neither defined in the relevant section nor does it
substantially appear anywhere in the Act. The word consumer
appears in the Act once in connection with the composition of the
Council of the Bureau.

2.1.5 Merchandise Marks Act

This Act was enacted to combat counterfeiting activities in 1963.

However, this legislation did not become operational until 15th April
2005 due to the delay in the publication of the commencement notice

92 The Standards Act No. 2 of 2009, section 3(1) & (2).

93 Ibid, section 4 (1).
94 Ibid, section 4 (1) and (2).
95 Ibid, section 18(1).
96 Ibid, section 27.

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in the official Gazette. 97 Due to some critics, the legislation was

amended in 2007 by the Written Laws (Miscellaneous Amendments)
(No. 2) Act, Act No. 19 of 2007. These amendments were important as
they addressed the counterfeiting problem broadly and came up with
some practical strategies and Rules to meet the shared challenges
posed by the problem of trade in counterfeit and pirated products.98
Among other things, the 2007 Amendments, introduced the offices
of Chief Inspector and other inspectors with various powers to
implement the law.99 The Chief Inspector has powers which included
powers to investigate and cause investigation to be conducted on
suspected person who breached the provision of this Act; to initiate
proceedings before the courts against the suspects as per the
provisions of this Act; to examine any person either alone or in
presence of another person as he thinks desirable with respect to the
matters under this Act; and to demand from the supplier of goods
information relating to particulars of the manufacturer of those goods
suspected to violate the provisions of this Act.100 If the supplier fails
to supply the information within fourteen days, the supplier would be
deemed to be the manufacturer of such goods.101 The amendment of
the law which demands the information of the manufacturer seeks to
know the source of the goods and if they turn to be counterfeits,
destroy them and disrupt the manufacturing and the chain supply.102
Moreover, in dealing with counterfeit products, cosmetics
inclusive, the Chief Inspector has powers to entertain complaints in
respect of counterfeited goods by the owners who are injured by the
counterfeits; and may conduct summary trial under the procedures
laid down in the regulations made by the Minister. 103 Another

97 See GN No. 95 of 2005 Published on 8th April 2005.

98 A. N. Mrema, “Recent Legislative Changes in the Trademark Law in Tanzania,”
Mkono & Co., 2009, 3.
99 See section 4 of the Written Laws (Miscellaneous Amendments) (No. 2) Act, Act
No. 19 of 2007.
100 The Merchandise Marks Act, section 2B (1) (a) – (d) as amended by section 4 (b)
of the Written Laws (Miscellaneous Amendments) (No. 2) Act, Act No. 19 of 2007.
101 Ibid, section 2B (2) as amended by section 4 (b) of the Written Laws
(Miscellaneous Amendments) (No. 2) Act, Act No. 19 of 2007.
102 Mrema, supra note 98, 3.
103 The Merchandise Marks Act, section 2C as amended by section 4 (b) of the Written
Laws (Miscellaneous Amendments) (No. 2) Act, Act No. 19 of 2007.

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important change that was introduced by the amendments is that the

Minister has been given power to make Regulations for the better
implementation of the Merchandise Marks Act. 104 The regulations
may prescribe the procedures for summary proceedings conducted
by the Chief Inspector on complaint referred to him on alleged
counterfeited goods by the owner of the trade mark counterfeited.105
This article finds that, before the 2007 amendment of the
Merchandise Marks Act, there was no possibility of making any
regulations at all.106 The amendments brought practical solutions as
in 2008 the Minister made decisive Regulations i.e. the Merchandise
Marks Regulations, 2008.107 These Regulations have, to a large extent
provided the hope of containing the problem of manufacture and
supply of counterfeit goods in the country as they set the detailed
legal framework addressing diverse legal issues pertaining to
counterfeit goods.
Accordingly, part II of the Regulations provides for functions and
the powers of the Chief Inspector which ranges from general powers
and functions; powers of the Chief Inspector to investigate; the
powers of the Chief Inspector to conduct the public inquiry; and the
power of the Minister on the advice of the Chief Inspector to establish
Zonal Offices. 108 Besides, the Regulations state that the Chief
Inspector may delegate his powers and functions.109
Part III of the Regulations deals with the appointments and the
Role of the Interdepartmental Task Force, which includes personnel
from different sectors including one representative from the Attorney
General’s Chambers, one representative from the Tanzania Revenue
Authority, one representative from the Police Force, one
representative from Tanzania Bureau of Standards, one
representative from Tanzania Foods and Drugs Authority and the one
representative from the Public Office. This Interdepartmental Task

104 Ibid, section 18 A (1) as amended by section 4(c) of the Written Laws
(Miscellaneous Amendments) (No. 2) Act, Act No. 19 of 2007.
105 Ibid, section 18A (2) (a) as amended by Section 4(c) of the Written Laws
(Miscellaneous Amendments) (No. 2) Act, Act No. 19 of 2007.
106 Mrema, supra note 98, 3.
107 GN No. 89 of 20 June 2008.
108 The Merchandise Marks Regulations, 2008, Regulations 3, 4, 5 & 7.
109 Ibid, Regulation 6.

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Force is formed based on the fact that the problem of counterfeit

goods cannot be curbed by one government department as it requires
diverse experiences and skills from different sectors to deal with the
problem.
Part IV of the Regulations deals with summary proceedings before
the Chief Inspector while Part V provides the roles of the public
institutions and the cost of handling counterfeit goods. Also part IV
provides for a detailed procedure for seizure and detention of
counterfeit goods while part VIII provides for sanctions and payment
of fines. The room to appeal against the decision of the Chief Inspector
is provided for under part IX and that appeal is filed in the Fair
Competition Tribunal. Lastly, part X provides for the mechanisms of
storage and disposal of unclaimed counterfeit goods.
This article reveals that in 2010, the Merchandise Marks
Regulations, 2008 were amended by the Merchandise Marks
(Amendments) Regulations, 2010. 110 The Merchandise Marks
(Amendments) Regulations, 2010 have improved the 2008
Regulations by explaining the powers of the Chief Inspector to
investigate which, according to the amendment, the Chief Inspector
may exercise such powers suo moto or upon request and payment of
prescribed fees on the breach of the provisions of the Act.111 Besides,
the 2010 Amendment Regulations have introduced a prescribed form
i.e. Form ‘L’ for making a claim made under regulation 34 of the 2008
Regulations. 112 Thus, the amendments brought by the 2010
Regulations are few, but have improved the operation of the office of
the Chief Inspector and other institutions involved to deal with
counterfeited goods under the auspices of the Merchandise Marks
Act.
Further amendments with regards to the Merchandise Marks Act
were also made under Part V of the Business Laws (Miscellaneous
Amendments) Act No. 3 of 2012 whereby counterfeit goods have been
defined to mean goods that are a result of counterfeiting and include
any goods generally known as pirated goods and any other means

110 Government Gazette of 12th November, 2010.

111 Regulation 4 (1) of the Merchandise Marks Regulations, 2008 as amended by
regulation 2 of the Merchandise Marks (Amendment) Regulations, 2010.
112 Regulation 34A of the Merchandise Marks Regulations, 2008 as amended by
Regulation 3 of the Merchandise Marks (Amendments) Regulations, 2010.

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used for counterfeiting.113 Also, this amendment of 2012 provides for

offences on counterfeit goods. 114 The Amendments and the
Regulations have breathed some new life into our law and this has
stepped up the on-going war to stamp out counterfeiting.115 Since the
law has now branded the importers and sellers of counterfeits as
criminals, it is now possible to use the criminal machinery to fight
counterfeits.116

2.1.6 The Sale of Goods Act

This Act provides for the law relating to the sale of goods. Where
there is a contract for the sale of goods by description, there is an
implied condition that the goods shall correspond with the
description, and if the sale is by sample as well as by description it is
not sufficient that the bulk of the goods corresponds with the sample
if the goods do not also correspond with the description.117
The Act also provides for exceptional circumstances where
implied warranty as to quality or fitness arises. 118 However, a
contract of sale is a contract for sale by sample where there is a term
in the contract, express or implied to that effect. 119 In case of a
contract for sale by sample, there is an implied condition that the bulk
shall correspond with the sample in quality, an implied condition that
the buyer shall have a reasonable opportunity of comparing the bulk
with the sample and an implied condition that the goods shall be free
from any defect, rendering them unmerchantable which would not be
apparent on reasonable examination of the sample.120
The Sale of Goods law does not prescribe requirements for sellers
of goods to provide purchasers with written guarantees or warranties

113 The Business Laws (Miscellaneous Amendments) Act No. 3 of 2012, section 36.
114 Ibid, section 38.
115 Mrema, supra note 98, 6.
116 Idem.
117 The Sales of Goods Act Cap. 214 [R.E. 2002], section 15.
118 Ibid, section 16.
119 Ibid, section 17 (1).
120 Ibid, section 17 (2) (a)-(c).

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in respect of the goods sold.121 Also, the law does not provide for a
right of buyers to cancel sale agreements within certain periods, even
in situations where there are no defects in goods purchased. 122 In
other jurisdictions, there is what is termed as the ‘cooling-off’ period,
which is the period of time following a purchase when the purchaser
may choose to cancel a purchase, and return goods which have been
supplied, for any reason and obtain a full refund of the money paid.123
While the law appears to be protecting the buyers, it is substantially
whittled down by its application of the doctrine of ‘caveat emptor’
which requires that a defect which is apparent on reasonable
examination of goods by the buyer, exonerates the seller form
liability. 124 Moreover, the sale of goods Act does not contain
provisions which deal with the applicability of unfair terms of
contract like in other jurisdictions which have more developed law on
sale of goods such as the United Kingdom.125

2.1.7 The Penal Code

This Act deals with control of supply of dangerous poisonous

products. The Act makes it an offence for any person who unlawfully
and negligently does any act which he knows or has reasons to believe
to be likely to spread the infection of any disease dangerous to life.126
Also, in this Act any person who with intend to defraud or to enable
another to defraud any person commits an offence and is liable upon
conviction to a fine of not less than ten million shillings, but not
exceeding fifty million shillings, or to imprisonment for not less than
four years but not more than fifteen years or to both.127 Furthermore,
this Act makes the act of hoarding commodities an offence.128

121 E. E. Mniwasa, Protecting Consumers of Goods under Tanzania’s Law: Issues and
Challenges, 1 The Tanzania Lawyer Journal, 1, (2017), 197.
122 Idem.
123 Idem.
124 Kanyabuhinya, supra note 37, 115.
125 Mniwasa, supra note 121, 197.
126 The Penal Code Cap. 16 [R.E. 2002], section 179.
127 Ibid, section 368.
128 Ibid, section 194A.

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3. Legal and Practical Analysis of Consumer Protection Laws

against Counterfeit Cosmetics

This part presents the position of the law and practices on the
consumer protection against counterfeit cosmetics in Tanzania. It
makes analyses of the position of the law and practice on consumer
protection by presenting data as collected through library research
and interviews conducted in Morogoro Municipality. From the desk
research and interviews conducted in Morogoro, it was established
that the supply and sell of counterfeit cosmetics have affected the
wide range of institutions and individuals. Victims of counterfeits
cosmetics ranges from consumers (who were the subject of this
study), brand owners, government, companies and trademark
owners. 129 The supply and sell of counterfeit cosmetics may have
different effects to the consumers including pecuniary loss, health
injuries and at times death.130 It is of vital importance to state that,
this part presents findings based on the laws on consumer protection
against counterfeit cosmetics; documents, particularly TFDA ‘Ten
Years of Regulating Food, Medicines, Cosmetics and Medical Devices:
Milestones Attained 2003-2013’ and interview findings.

3.1 Consumers Awareness of the Laws against Counterfeit

Cosmetics.

This article finds that, consumers in Morogoro Municipality have

just general awareness of the law protecting them against the
deceiving market. Most of the consumers were not aware of the
specific laws applicable to specific issues related to their protection
as consumers of cosmetics. For instance, while the TFDA is an
independent authority from the FCC, the law required that any
consumer complaints from the TFDA to be filed by the TFDA itself to
the competent court of jurisdiction and not to the FCC. 131 This
problem was compounded by the position of the law that while the
FCC deals with consumer protection generally; it is not possible for

129 Kanyabuhinya, supra note 37, 127.

130 Ibid at p. 129.
131 Findings of the Interviews conducted in Morogoro from August to September
2016.

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consumers with the TFDA consumer complaints to file their

complaints to the FCC unless such consumer complaints involve anti-
competitive practices. 132 These two different legal regimes and
technicalities in dealing with consumer protection issues under TFDA
and FCC acted as impediment for consumers of cosmetics to
distinguish which legal channel to take for remedies in case their
rights are infringed.
Additionally, it is submitted that the majority of consumers within
Morogoro Municipality are unaware of the effects of counterfeit
cosmetics. The study indicated that consumers who have
encountered counterfeit cosmetics, especially the cosmetics which
are locally manufactured commonly known as ‘Mikorogo’, and the
ones which contain harmful ingredients are unaware of the effects
which can be caused by the use of such cosmetics. 133 The
respondents’ only care that such cosmetics are affordable to them in
terms of prices and that they produce effective results according to
their needs something which is very dangerous. This is to say that the
consumers are unaware of the sections 86 to 89 of the Tanzania Food,
Drugs and Cosmetics Act. Therefore, a need to educate the general
public is essential since effects from the use of such counterfeit
cosmetic results into serious diseases such as skin cancer whereby
eventually an individual loses his or her life.

3.2 The Position of Cosmetics Suppliers and Sellers on

Consumer Protection against Counterfeit Cosmetics

The study conducted a visit to different cosmetics suppliers and

sellers within Morogoro Municipality and interviewed them. While
responding to the question as to whether they have encountered any
complaints from individual consumers on cosmetics they supply or
sell they all agreed to the existence of complaints related to the
cosmetics they sell. For the consumers that complained, the suppliers
stated that they did not encounter any legal problems such as being
sued but rather just mere blames from consumers.134 However, when

132 Idem.
133 Idem.
134 Idem.

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suppliers were asked as to what they usually do first when they

receive a consumer complains about counterfeit cosmetic, they
responded that the first thing they do is to negotiate with the
consumer and sometimes recommend another type of cosmetics to
the consumer for better results.135
Besides, the suppliers’ opinions regarding consumer protection
laws against counterfeit cosmetics in Tanzania revealed that they are
unaware of such law, including the provisions of Part V of Tanzania
Food, Drugs and Cosmetics Act which deals with the regulation of
cosmetics in the country. This article submits that suppliers of
cosmetics within Morogoro Municipality are unaware of the
consumer protection laws and in case they encounter any complaints
from the consumers, they settle such complaints through negotiations
and sometimes recommending alternative cosmetics to the consumer
for better results.

3.3 The Position of the Tanzania Foods and Drugs Authority

(TFDA)

The office of TFDA is vested with the powers to protect and

promote public health by ensuring quality, safety and effectiveness of
food, medicines, cosmetics and medical devices was visited as an
authority which is the centre of this study. The interview with the
Regional Pharmacist of Morogoro who is also a Regional Pharmacist
of the Morogoro Regional Referral Hospital and a TFDA official
representative within the Morogoro Region centred on a number of
complaints received in a year regarding counterfeit cosmetics. Other
questions were the execution of the regulations governing counterfeit
and the views of the officials of the TFDA on the existing consumer
protection laws. In responding to complaints and disputes received
by the authority with regards to counterfeit cosmetics respectively,
the respondents could not give accurate data, but generally they said
from the year 2005 TFDA received a total of 231 cases which were
filled at different courts of which five (5) were civil cases and 226
were criminal cases. 136 All filed cases ended by offenders to either

135 Idem.
136 Idem.

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paying a fine between TZS 50,000 –TZS 1,000,000 or jailed for less
than two (2) years.137

3.3.1 Health Risks of Harmful Ingredient

This article submits that as per the law whenever the TFDA
considers it necessary or desirable in the public interest that any
ingredient should be declared to be prohibited, the Minister may, on
the advice of the Director General and by notice in the Gazette declare
such ingredient to be a prohibited ingredient and may in like manner
amend or revoke such notice.138 The harmful ingredients, prohibited
by TFDA that are used in the manufacture of cosmetics may lead to
various health risks to the users. 139 Due to the effects of these
harmful ingredients used to manufacture cosmetics, the law
categorically provides that cosmetics shall not contain any prohibited
ingredients except as otherwise provided in the regulations, and only
approved substances may be used to colour cosmetics.140 There is the
existence of health and economic effects caused by the use of harmful
cosmetics including skin allergy, skin diseases and skin irritation
when exposed to the sun; skin becomes softer and prone to infections
such as fungus and bacterial diseases; and harmful effects to babies in
the mother’s womb when expectant mothers use cosmetics that have
mercury.141 Besides, skin and lung cancer due to the use of cosmetics
with Vinyl Chloride and Zinconium; skin irritation and pigment
orientations that cause dark and light spots on the skin due to the use
of Hydroquinone; economic burden due to financial implications
associated with treatment costs; and the loss of workforce when the
user gets reactions from harmful cosmetics are other effects resulting
from the use of harmful ingredients used to produce cosmetics
prohibited by the TFDA. 142 In protecting consumers of cosmetics,
TFDA has provided the list of Prohibited Cosmetics Ingredients that
are poisonous and harmful. From the list, cosmetics with mercury,

137 Idem.
138 Tanzania Food, Drugs and Cosmetics, Act 2003, s.87 (1).
139 Tanzania Food and Drugs Authority, supra note 25, 39.
140 Tanzania Food, Drugs and Cosmetics, Act 2003, s.87 (2) & (3).
141 Tanzania Food and Drugs Authority, supra note 25, 39.
142 Idem.

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chlorofluorocarbons, steroids, hydroquinone, bithionol and

hexachlorophene compounds are poisonous and harmful. 143 Also
cosmetics with ingredients of Vinyl chloride, zirconium, chloroform
propellants, methyl chloride and halogenerated salicylanilides are in
the list of poisonous and harmful cosmetics.144

3.3.2 Local Cosmetics

There is the rise of local cosmetics which are made by mixing

different chemicals and concoctions at different localities and they
have been penetrated in the supply chain of cosmetics within the
country. It is the requirement of the law that cosmetics that shall be
sold, given, manufactured, imported, stored or exhibited for the
purpose of being sold or given in the country must be conforms to
requirements prescribed by the TFDA.145 Besides, the law prohibits
the sell, supply or distribution of cosmetics that contain poisonous or
harmful substances that might injure users under normal conditions;
manufacture or hold cosmetics under insanitary conditions, using
non-permitted colours, or including any filthy, putrid or decomposed
substance; and the sell, or stock or exhibit or offer for sale or
distribute any cosmetic which has been imported or manufactured in
contravention of any of the provisions of this Act 146 That
notwithstanding, due to the very high prices of modern cosmetics,
some people have opted to make their own concoctions of local or
homemade cosmetics (local cosmetics) contrary to this requirement
of the law.147 Some of these local cosmetics, especially those made
out of the farm produce and its allied products are safe as they have
no health risks to the users.148 Nevertheless, other local cosmetics are
made out of a mixture of various products including chemicals and
medicines. 149 Social status is one of the factors which have
contributed to the manufacturer of local cosmetics and/or homemade

143 Idem.
144 Idem.
145 Tanzania Food, Drugs and Cosmetics, Act 2003, s.86.
146 Ibid, s.88 (a) –(c).
147 Tanzania Food and Drugs Authority, supra note 25, 40.
148 Idem.
149 Idem.

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concoctions in the name of cosmetics. Some people tend to imitate the

consumption standard of those above them or those with higher
income and/or social hierarchy than them. 150 By so doing they try to
make products resembling the ones consumed by those above their
social status. 151 As for cosmetics, they end up making cosmetics
which are so harmful to their health which cause a range of harms
such as financial harm, health harm which include diseases such as
skin cancer and at times death. These local cosmetics are popularly
known as ‘Mikorogo’ and are available in different names as shown in
Table No.1 below.

Table No.1: Various Types of harmful/unwanted Local

Cosmetics.
No. Local Mixing Formulae and Usage/Application
Cosmetics Its Preparations
Name
1. Mkorogo Boil Jaribu Soap then Apply twice per day
Special add Jaribu Cream +
tube of Colgate
(Toothpaste) +
(Bleach) JIK + Any type
of lotion (Mix
vigorously)
2. ITV Special Add Hamira Lotion + Apply twice per day
Hamira Cream (Boil for
a long time)
3. Saloon Special Add any steroid cream Apply at any
(especially Dermotave) convenient time
+ Any lotion + Water +
Hydrogen Peroxide
4. Mkorogo Add Demortave + Apply twice per day
Revlon + (Bleach) JIK +
(Washing Powder)
5. Mambo Yote Add Grounded soap in a Take a bath in the tub
bath + (Bleach) JIK + for several minutes
White Cement (Mix for
a reasonable time)

150 Hamelin, supra note 33, 160.

151 Idem.

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6. N/A Add Cocoa butter + Apply at any time

Boiled RICO soap + convenient
White Rose cream +
Jaribu cream
7. N/A Add Movate cream + Apply at any time
Dermovate cream+ convenient
Mekako soap
Source: The TFDA 10 Years Anniversary (2003-2013) Book p.40.

3.3.3 Misuse of Medicines as Cosmetics

Meanwhile, the article reveals that among prohibited ingredients

used in cosmetics is a steroid which basically is a medicine. 152
Examples of medicines with steroids as ingredients include
Clobetasol and Betamethasone which are traded as Movate, Betacort-
N, Diproson, Gentrisone, etc. These products are dispensed as
‘prescription only medicines’ and are only given to the skin patients
subject to the doctor’s prescription and the pharmacist advice. 153
Despite this requirement, some people have been misusing them as
cosmetics. Other medicines that have been prohibited for use as
cosmetics are those of hip, penis and breast enlargement as they are
believed to have harmful effects that may trigger cancer (cancer
enhancers) to users.154 The TFDA has put in place control systems in
order to ensure that cosmetics that are available in the country are
safe and of good quality to the users and medicines which are
supposed to be prescribed to cure skin and other related diseases
must be used for the intended purposes.155 This is to ensure that all
cosmetics circulating in Tanzanian market have no prohibited
ingredients that can cause harm to users.

3.3.4 Registration of Cosmetics and Premises used in

Manufacture, Storage and Sale of Cosmetics

The law provides for the procedures to be followed for registration

of cosmetics. Besides, the law prohibits the selling and distribution of

152 Tanzania Food and Drugs Authority, supra note 25, 40.
153 Idem.
154 Idem.
155 Findings of the Interviews conducted in Morogoro from August to September
2016.

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cosmetics that are not registered by TFDA as they may cause harm to
users. 156 TFDA has set a working mechanism which requires
individuals and companies engaged in the distribution and selling of
cosmetics in the country to register their cosmetic products. 157 In
registering cosmetics TFDA receive and evaluate information on the
presence of ingredients in cosmetics; then conduct laboratory
analysis of cosmetic samples; and lastly evaluate product information
including its labels. 158 The information obtained from TFDA
documents reveals that, initially between July 2003 and February
2008, TFDA operated under a system which requires the notification
of cosmetics. This system was later replaced by a registration
procedure which was introduced after February 2008. Therefore,
based on the two systems of notification and later registration, which
have existed from the year 2003, it is submitted that from 2003 to
2013, TFDA has been able to notify and register a total of 3,968
cosmetics in Tanzania.159
Apart from the registration of cosmetics, there is the requirement
to register premises used for the manufacture, storage and sale of
cosmetics. Registered premises include manufacturing facilities,
warehouses, wholesale and retail cosmetic outlets.160 Procedures for
premises registration includes receiving applications, verifying the
received applications, inspecting premises, issuing registration
certificates and issuing business permits. The article submits that
from 2003 to 2013, TFDA has registered a total of 1,223 premises
involved in the cosmetics business which include; 7 manufacturing
facilities, 3 warehouses and 1,213 wholesale and retail cosmetics
shops.161

3.3.5 Inspection of Cosmetics

Inspection of cosmetics in Tanzania is made by the TFDA. The law

gives it power to inspect all premises that are used for cosmetics

156 Tanzania Food, Drugs and Cosmetics, Act 2003, sections 86 – 90.
157 Tanzania Food and Drugs Authority, supra note 25, 41.
158 Idem.
159 Idem.
160 Idem.
161 Idem.

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business. 162 Premises inspected include manufacturing facilities,

warehouses, wholesale and retail shops and vehicle/vessels that are
used to transport cosmetics.163 It is submitted that between July 2003
and June 2013, TFDA was able to inspect 4,164 premises used for
cosmetics business. This article reveals that in the financial years
2003/04 to 2007/08, TFDA inspected 706 Wholesale and Retail
Shops, 3 Manufactures and Warehouses making the total of inspected
premises to be 709. In the financial year 2008/09 the number of
Wholesale and Retail Shops which were inspected were 142 while the
number of Manufacturers and Warehouses inspected were 2 making
the total of inspected premises to be 144. This marks the financial
year 2008/09 to have inspected few premises.
It is further submitted that, the year in which TFDA inspected
many premises was the financial year 2010/11 in which a number of
1,046 Wholesale and Retail Shops and 3 Manufacturers and
Warehouses were inspected making the total of inspected premises
to be 1,049. 164 This article, therefore finds that TFDA has been
fulfilling its obligation to inspect cosmetics in Wholesale and Retail
Shops and manufacturers and Warehouses every financial year. This
is justified by its report from the year 2003 and 2013.There is
variations of the number of premises which were inspected from
2003 to 2013. From these variations, it was reported that, TFDA
inspected as little as 144 cosmetics premises in one year while in
another year 1,049 cosmetics premises were inspected. It is therefore
advised that at least all cosmetics premises to be inspected every
financial year to achieve consumer protection against counterfeit
cosmetics.

3.3.7 Import and Export Control of Cosmetics

The import and export control of cosmetics is regulated for under

section 86 of the Tanzania Food, Drugs and Cosmetics Act, 2003 which
mandates the TFDA to control importation of cosmetics into the
country. In addition, the requirements for export control of cosmetics
as specified under section 5 (1) (l) of the Act.

162 Tanzania, Food, Drugs and Cosmetics Act, 2003, Section 5 (1) (h).
163 Tanzania Food and Drugs Authority, supra note 25, 42.
164 Idem.

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TFDA has put in place systems for control of importation and

exportation of cosmetics in the country. Importation and exportation
of cosmetics requires certain procedures to be fulfilled which include,
receiving an application for registration of the imported and
specifying details of intended cosmetics to be dealt with; reviewing
the applications and issuing import or export permits.165 The article
finds that for the ten years i.e. from 2003 to 2013, TFDA issued 914
import permits and 155 export permits for cosmetics.166 Besides, the
article reveals that the import and export control system for
cosmetics, which aims at protecting consumers of cosmetics in the
country, is strengthened through the implementation of the
procedural requirement which provides for all cosmetics to be
registered first before market authorization came into force. Through
this system TFDA has managed to prevent the importation of harmful
cosmetics into the country and thereby protecting the general public
health. The article, nonetheless, shows that despite all these controls,
having many outlets and inlets for the supply of the unauthorised
cosmetics, shortage of staff to control such importations has halted
government efforts to protect consumers of cosmetics.

3.3.8 Disposal of Cosmetics

TFDA is mandated to confiscate and dispose all products including

cosmetics with prohibited ingredients.167 The disposal procedure has
been set up and it involves receiving applications for disposal of
cosmetics; conducting inspect of the quantity and type of cosmetics to
be disposed of; estimating the value of cosmetics to be disposed of;
disposing cosmetics at the expense of the applicant; and issuing
Disposal Certificates.168 The actual disposal process takes place at the
sites registered by the government and the process involves
inspectors from TFDA, representatives from NEMC, police force and
respective Councils.169

165 Idem.
166 Idem.
167 Tanzania Food, Drugs and Cosmetics Act, 2003, sections 6 (c), 34, 35 and 99.
168 Tanzania Food and Drugs Authority, supra note 25, 43.
169 Idem.

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3.4 Concluding Remarks

This article examined consumer protection with regards to

consumers of counterfeit cosmetics in Tanzania. It submits that there
are laws that recognize the importance of consumer rights and
interests in the country. Significant safeguards of consumers in the
country are justified by the position of the Constitution, statutes and
policy which have set policy and legal framework for consumer
protection. In the wake to bring the understanding of the concept of
consumer protection in the country, the article reveals that, the urge
to protect consumers has a long history, ranging from the colonial
period, but the modern position of the law could be traced from the
period of independence i.e. 1961. Also, it is submitted that economic
ideologies which have been padded in the country have to a large
extent affected the position of consumer protection. From that
backdrop, after the adoption of Ujamaa, the legal framework for
consumer protection changed to suit the ideology and in that case the
consumers generally were protected under the auspices of the
National Price Commission (NPC) which was established under the
Regulation of Prices Act of 1973. Besides, after the change from the
Ujamaa ideology which was followed by the market economy, it
showed the need of change of laws. With the need of consumer
protection law, laws such as the Fair Competition and Consumer
Protection Act of 2003, the Tanzania Food, Drugs and Cosmetics Act,
2003 and others have been enacted to protect consumers.
This article presents that, the enforcement of the rights guaranteed
under the statutes, as with regards to consumer protection falls in the
jurisdiction of the FCCC. On the other hand, TFDA is not a regulatory
authority under the Fair Competition and Consumer Protection Act of
2003 making complaints arising from cosmetics consumers who fall
under the umbrella TFDA out of the FCCC jurisdiction. It is submitted
that the FCCC only protects consumers where there is an element of
anti-competitive practices. Thus, the absence of the element of anti-
competitive practices in a consumer complaint renders the FCCC with
no jurisdiction upon that matter. This makes it impossible for
consumers of cosmetics enjoy the remedies vested under the Fair
Competition and Consumer Protection Act, 2003. Moreover, there is a
low level of awareness on the part of consumers of cosmetics with
regards to their rights as consumers. Consumers are unaware of the

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legal remedies protecting them henceforth they do not file complaints

to TFDA with regards to the issue of counterfeit cosmetics

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