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MISLEADING ADVERTISEMENT AND ITS LEGAL REMEDIES



INTRODUCTION

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

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.

  • Horlicks

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”-

  1. No drugs may claim to prevent or cure or indent to prevent or cure one or more diseases mentioned in schedule J.

  2. 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

  1. 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.