MISLEADING ADVERTISEMENT AND ITS LEGAL REMEDIES
The influence of advertisement is undeniable on the consumers choice and because of this fact it is imperative that advertisements be truthful and fair. Any advertisement or promotion of goods or services through Radio, television or any electronic means, such as media, Newspapers, Posters, wall-writing, Banners, Handbills etc. to misrepresent the nature, qualities, characteristics, or geographic origin, so as to mislead the consumer could be defined as a misleading advertisement.
False advertising can be described as the crime or misconduct of transmitting, publishing, or publicly circulating an advertisement containing false, deceptive or misleading statements, made intentionally to promote the sale of goods, services or property to the public.
Misleading and false advertisements are not only unethical but they also distort competition and consumer choice. False and misleading advertisements in fact violate basic rights of consumers such as, the right to choice, the right to information, the right to be protected against unsafe goods and services as well as unfair trade practices.
INDIAN ADS THAT HAVE BEEN FOUND TO BE MISLEADING
Arihant Mattress- Corona-Resistant
The Arihant mattress released an advertisement in a Gujarati newspaper which claimed that their mattress was ‘corona-resistant’ and ‘anti-corona virus’! The owner of the mattress was booked by the Maharashtra Food and Drug Administration and under various other laws including the Disaster Management Act, 2005 and the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.
Eat Chicken-Beat Corona
The advertisement claimed that eating chicken boosts immunity. The complaint was filed by People for the Ethical Treatment of Animals (PETA), acting on a complaint ASCI instructed Breeders Association and Vencobb and the Karnataka Poultry Farmers that the online ad be taken down.
Maggi noodles is one of the most popular food item, in advertisement they claimed that it is healthy for children. When samples were collected from different states it was found that it contains monosodium Glutamate and lead which was in excess to the prescribed limit. So the matter was taken to the consumer court and an FIR was lodged against Madhuri Dixit, Priety Zinta and Amitabh Bhachhan for promoting this product.
The health drink brand Horlicks claimed in their advertisement that it makes children taller, stronger and sharper. They claimed that their drink improves concentration and helps students score better during exams. A complaint was filed against the company that they are using people’s apprehension to sell their health drink.
Kellogg’s Corn Flakes
Kellogg's Special K was under the scanner of the Food Safety and Standards Authority of India for making false health claims. In the advertisement, the company claimed that people who eat low fat Kellogg’s can lose weight as it adds only 114 calories to the diet of the person.
PRINCIPLE OF CONTRACTUAL LIABILITY
Carlill v Carbolic smoke ball (1892), the company Carbolic Smoke Ball released an advertisement stating that Carbolic Smoke Ball was a definite panacea for influenza, coughs and colds, hay-fever, headaches, laryngitis, bronchitis, whooping cough and any other sore throat related troubles. They also claimed that the ball not only prevents influenza but also prevents common flu.
They were so confident with the usefulness of their product that they stated if any person catches influenza or cold using their product, such person shall be entitled to £100 from the company provided that product was used for a specified time period.
The Plaintiff, Lilli Carlill brought a case against the company stating that she used the product as specified and still caught flu.
3 Judge-Bench consisting of Justice Lindley, Justice Smith and Justice Bowen held that the company is liable to pay Mrs. Carlil as the advertisement was an offer that was made to everyone who bought the smoke ball
MISLEADING ADVERTISEMENTS: LAWS AND REGULATIONS
There are numerous legislation that prohibit false and misleading advertisements. These laws have been enacted to protect consumers from exploitation. The important legislations are-
Drugs and Magic Remedies (Objectionable Advertisements) Act
The act prohibits advertisement pertaining to drugs and magical cures. Section 3 of the act prohibits advertisement promoting the drugs for diagnosis, cure, treatment, mitigation, or prevention of any disease, condition or disorder specified in the Schedule.
Section 4 of Drugs and Magic Remedies (Objectionable Advertisements) Act prohibits advertisement relating to false impressions relating to the true character of the drug. Section 5 prohibited advertisement relating to magic drugs for treatment of diseases or disorders.
Violation of the provisions of the act, the accused is liable for imprisonment upto 6 months or fine or both.
The problem with the act is that it is outdated and is ineffective with today's problem. The enforcement by the law authorities is poor and lacks proper measures.
The Cable Television Network Regulation Act and Rules
The Cable Television Network Regulation Act and Rules prescribes that all advertisements which are transmitted through cable should adhere to the code formulated under the act. The act provides that no person shall transmit or retransmit any advertisement which is not in conformity with the code.
Under the act the district magistrate or the sub divisional magistrate or the commissioner of police or any other officer as notified by the central or state government can take action for any violation of the provision.
The problem with the act is their enforcing agency. The law is rarely enforced as we see a number of misleading advertisements on the television promoting magical products.
Food Safety and Standards (Advertising and Claims) Regulations, 2018
The act is a relatively new legislation. The provision of the act deals with misleading and false advertisement relating to food. Under this act advertisement includes publicity and advertisement through all media including electronic means. Advertisement also includes promotion through wrapper, labels and invoice. Violation of the provision of the act attracts penalty upto Rs 10 Lakh.
The problem with the law is that it has no provision of corrective advertisement as it is only through corrective advertisement messages conveyed by false or misleading advertisements be corrected.
Drugs and Cosmetics Act, 1940
Rule 106 of Drugs and cosmetic act refers “Diseases which a drug may not purport to prevent or cure”-
No drugs may claim to prevent or cure or indent to prevent or cure one or more diseases mentioned in schedule J.
No drug may claim to purport or assist to precure any idea that may assist to procure or procure miscarriage in women.
ASCI’s Code for self- regulation
ASCI is a non- government organisation which ensures that all advertisements follow fair and just legal practice. It ensues truthfulness and honesty of representation by advertisement to safeguard consumers against false and misleading claims. ASCI has issued various guidelines related to advertisement for Beauty, food and beverages, non- food items, healthcare products etc.
They can only make recommendations to remove advertisements but cannot force them to revoke advertisements.
Consumer protection act, 2019
Section 2(28) of Consumer protection act defines misleading advertisement as falsely described product or service; giving false guarantee to mislead consumers etc. The act provides that complaint relating to false or misleading advertising maybe files on written or electronic mode to the District Collector or the Commissioner of regional office or the Central Authority
MISLEADING ADVERTISEMENTS AND REGULATORS
In addition to laws related to false and misleading advertisements, the regulatory agencies are also established to ensure advertisers do not mislead consumers. Some of the regulatory bodies are-
Insurance Regulatory Development Authority
IRDA (Insurance Advertisements and Disclosure) Regulations, 2000
IRDA regulation lays down strict guidelines on the content of the advertisements issued by insurers and their intermediaries and also on their compliance. They stipulate advertisements to follow the code formulated by ASCI, and the regulation of the code directs that the advertisements related to insurance policy to be fair or just. IRDA also gives the regulator power to issue corrective advertisements.
The regulation also directs every intermediary, insurer or agent to have a compliance officer to oversee the advertising programme. It also mandates insurers to maintain advertisement register which can be inspected by the authority. If the advertisement is in violation of the regulations then it can issue an order for corrective advertisement, to discontinue the advertisement or any other action as they deem fit.
IRDA Guidelines on Distance Marketing of Insurance Products
IRDA Guidelines on Distance Marketing of Insurance Products was brought in order to prevent misleading insurance policies through distance marketing. The guideline was brought into effect in 2011 by IRDA to protect consumer interest. The guideline applies to all activities of Solicitation and sale of insurance through email, internet, newspaper etc. The guidelines also mandate conversation over telephone with consumers to be recorded.
Telecom Regulatory Authority of India
The Telecom Commercial Communications Customer Preference Regulations, 2010
The provision of the regulation came into effect in September 2011. This an effective regulation to limit unsolicited commercial communications. The regulations give procedures to exercise their preference on commercial communication for telecom consumers.
TRAI Direction on Preventing Misleading Tariff Advertisement, 2012
TRIA mandates advertisements by telecom service providers to provide non- misleading, transparent and unambiguous, the regulation mandates to disclose all information to customers. It also provides to report compliance to the Authority on a half-yearly basis.
Securities and Exchange Board of India
Chapter IX of the (Disclosure and Investor Protection) Guidelines, 2000 of the SEBI provides specific guidelines on advertisements. Some of them are-
To issue fair, truthful and clear advertisements.
The advertisement shall disclose all relevant facts and not be restricted to select extracts relating to that item.
Advertisement should be in concise, clear and understandable language.
Any promise that may indicate a rapid increase in profit shall not be contained in the advertisement.
The issued advertisements should not appear in the form of crawlers on television.
Reserve Bank of India
The Reserve Bank of India also exercises its power to curb false and misleading advertisements by financial institutions. Chapter 45J gives the Central Bank the power to regulate the issue of prospectus or advertisement soliciting deposits of money. It specifies the conditions to which any such prospectus or advertisement may be issued.
Medical Council of India
Chapter 6 of the Code of Ethics Regulations, 2002 formulated under the Indian Medical Council Act deals with advertisements. It provides that any physician shall not use his or her name as subject of any advertisement or publicity to invite attention to him or his profession. A physician should not give to any person, for compensation or otherwise, any recommendation, approval, endorsement, report, certificate, or statement with respect of any medicine, drug, therapeutic article, nostrum remedy, apparatus or appliance for use in connection with his name, signature, or photograph in any manner of advertising through any mode.
In the present globalised era, advertisements play an essential role in developing a strong brand of the corporation or products. In general, advertisements are used to persuade, inform, and remind consumers about the services or products. The problem with false and misleading advertisements is getting worse day- by- day. Misleading and false advertisements are not only unethical but they also distort competition and consumer choice. They create a scare amongst the general public especially during situations such as the present pandemic. Advertisers should avoid broadcasting false, misleading or unsubstantiated claims that can trigger mental or health risks. Due to their strong impact they also create psychological situations among children to purchase certain products. False and misleading advertisements violate basic rights of consumers such as, the right to choice, the right to information as well as promote unfair trade practices. The purpose of advertisement should be to guide rather than threaten or blackmail consumers by pushing to buy products.
Despite a number of legislation on misleading and false advertisement, consumers continue to be victims of such acts because of poor enforcement and inadequacy of existing laws. These laws have left a huge void in consumer protection. It has become important to bring better laws and proper enforcing agency as advertisements now have wider canvas, today they reach in the remote areas too. Provisions for corrective advertisement should be issued as it is only through corrective advertisement messages conveyed by false or misleading advertisements be corrected.
SUBMITTED BY- ADITI YADAV
AMITY LAW SCHOOL, AMITY UNIVERSITY, NOIDA