MISLEADING ADVERTISEMENTS AND THE LAW IN INDIA


MISLEADING ADVERTISEMENTS AND THE LAW IN INDIA

MISLEADING ADVERTISEMENTS AND THE LAW IN INDIA

What really decides consumers to buy or not to buy is the content of your advertising, and not its form.”

                                                                                                                             -David Ogilvy                                                                                                                                                                                                                                                                                                                         

1.     INTRODUCTION

Some 3,000 years ago, shoemakers and scribes promulgated their services on clay tablets. Ancient Greeks used town criers to proclaim the arrival of ships laden with cargo of wine and spices[1]. Advertising is as old as civilisation and commerce.  Today, advertisements have spread its tentacles in over all walks of human life.

It is here when the need for consumer protection[2] is greatly realized where the consumers require protection from all three sides viz. the state (legislations and grievance redressal), the vendor (self-regulation) and the consumer himself (self-awareness).

2.     DEFINITIONS OF ADVERTISING

Ones perception of advertisements and the connotations given to it can change day by day. Traditionally, John E. Kennedy has defined advertisement as “salesmanship in-print” and this apparently is one of the most widely used three word definition of advertisements.[3]

3.     TESTS OF ADVERTISING

Tests for Identifying Deceptive Advertisements Courts and forums have in the course of deciding cases related to deceptive advertisements, evolved a few tests to determine whether an advertisement is deceptive or not. Some of the most important tests which have been so evolved include:

(a) Reasonable person test, and

 (b) Impression test.

3.1  REASONABLE PERSON TEST

As the law wants to protect the general public or common man against deceptive advertisements, the concept of “general public” or “common consumer” requires clarity. The Sacchar Committee,[4] way back in 1978 had endorsed the “average purchaser” standard as a test to determine the character of a trade practice.[5] The apex court relies on the “reasonable man's intelligence”[6] as a standard to test if there is deception in an advertisement. The court has used the “reasonable man” test to determine if a certain advertisement will be perceived as deceptive or not.

3.2  THE IMPRESSION TEST:-

The impression test is an offshoot of the reasonable person test and it fine tunes this test. Most people who watch advertisements on the electronic media, such as television, get deeply influenced by it as it effects the psyche of the viewers.[7] Therefore, an advertiser has to virtually walk on a tight rope while telecasting a commercial and repeatedly ask himself the question, what impact would the commercial have on the mind of a viewer?[8]

4.     NEED FOR REGULATION

The purpose of regulating misleading advertising under a statutory framework is to ensure that advertisements do not twist the facts about the product and mislead the consumer by way of subtle implications, exclusions, and fake statements with respect to the quality, quantity, and features of the product or any service accompanying the product.

KINDS OF MISLEADING ADVERTISEMENT:

An advertisement could be considered as misleading under multiple situations.

a.     Hidden fees and charges when the consumers are often misled by the hidden charges made by the Service providers on the fees and surcharges that are not disclosed to the customer in the advertised price.[9]

b.     Misleading includes when there was manipulation[10] of measurement units and standards.

c.     False colouring is one form of misleading the customers to make them believe that the food is fresher, riper or otherwise healthier. Same is mainly made by using chemicals which ruins the health of consumers.

d.     Many companies give false guarantee without specifying the remedy if that guarantee fails.

 

6.   GAMUT OF LEGISLATIONS CONTROLLING MISLEADING ADVERTISEMENTS:-

The significance of the legislations is to assimilate and assert that a comprehensive and distinct law is required to regulate rather than the scattered and insignificant provisions. Following are certain legislations regulating misleading advertisements in various arenas:-

  i.         THE CONSUMER PROTECTION ACT, 2019:-

The genesis of the pertinent act has taken place from the Consumer Protection Act, 1986. While the aforementioned act had solely defined unfair trade practices[11], the Consumer Protection Act, 2019 has made it quite unambiguous by defining misleading advertisements.[12] The act provides for the establishment of a Central Consumer Protection Authority[13] and allocates power to the District Collector as well in regard to regulation of matters relating to violation of consumer rights and carrying out the inquiries relating to the same.[14]

ii.          THE CONSTITUTION OF INDIA:

Even though there is no singular provision for regulating advertisements, the Constitution of India clearly protects freedom of speech and expression in Article 19(1)(a) with reasonable restrictions.[15] The Supreme Court held that, an advertisement is no doubt a form of speech and expression but every advertisement is not a matter dealing with the expression of ideas and hence advertisement of a commercial nature cannot fall within the concept of Article 19(1)(a) if it in any manner intends to mislead the masses.[16] Thus, the Court, however, made it clear that the government could regulate commercial advertisements, which are deceptive, unfair, misleading and untruthful.[17]

iii.          VERGHESE COMMITTEE REPORT

Verghese Committee Report in 1978 is one of the significant reports, based on which certain general rules of conduct were laid down by the Government. Some of the rules are relating to misleading advertisements. According to the rules:

1. No advertisement shall contain references which are likely to lead public to infer that the product advertised or any of its gradients has some property or quality which is capable of being established e.g. care for baldness.

2. Advertisement should not be designed to confuse the consumer’s mind as: a. The imitation of the trademark or name of a competitor or the packaging or labelling of goods, or b. The imitation of advertising devices, copy, layout or slogans.

7.     SELF REGULATORY BODIES IN INDIA

      i.         ADVERTISING STANDARDS COUNCIL OF INDIA

It is found that Advertising Standards Council of India (ASCI) was appointed by the Department of Consumer Affairs (DoCA) to monitor the web portal Grievances Against Misleading Advertisement wherein the complaints are handled in a three tier system i.e. first complaints are processed by ASCI, the second level of escalation in case of noncompliance to a sub-committee headed by the Joint Secretary, DoCA, under Inter Ministerial Monitoring Committee (IMMC) and in the end, the concerned regulator was empowered by law to take action in case of persistent offenders.

8.     CONCLUSION:-

When the judicial approach is viewed from the laws which are applied by the Courts, it could be found that in most cases the Courts rely upon Advertising Codes framed by Regulatory Bodies such as Press Council of India, Advertising Standards Council of India etc. The Statute enacted must provide the definition of advertisements, fixing the criteria to hold an advertisement as misleading, making ease the way to approach the judiciary and determining the remedy by imposing ban or awarding compensation to the aggrieved. Only after enactment of a separate statute, the judicial approach could be effective in regulating the misleading advertisements.



[1] Lien Verbauwhede, “Intellectual Property Issues in Advertising” (2nd Edition).   

[2] U.P Power Corporation Ltd, & Ors v. Anis Ahmad;2013 (5) ABR 494.

[3] Claude C. Hopkins, Scientific Advertising, Cool Publications, England (1st e-book edn., 2004), p.10).

[4] Justice Rajindar Sachar, Report of The High-Powered Expert Committee on Companies and MRTP Acts, 1978, p.263.

[5] K Sampath, “New Challenges in Service Sector”, in Vallanadu Narayanan Viswanathan (ed.), Consumer Rights in Service Sector, Concept Publishing Company, New Delhi (2008), p. 27.)

[6] Mahadev Pradesh Kaushik vs. State of Uttar Pradesh and Another; (2008) 14 SCC 479.

[7] Pepsi Co. Inc. & Ors. v. Hindustan Coca Cola Ltd. & Another; 2003 (27) P.T.C 305 (Del.).

[8] Dabur India Ltd. v. M/S Colortek Meghalaya Pvt. Ltd., 2010 (42) P.T.C 88 (Del.).

[9] For example, according to Consumer Complaint Council (CCC) of ASCI, the grocery delivery startup Grofers for its advertisement claiming to sell Dunky Doos Donut Box of six at Rs 199, was ―misleading by ambiguity and omission" as it mentions that the price quoted is subject to taxes. The Council holds that "The advertisement carried the price of the product as Rs 199, followed by an asterisk and a further caveat with the words 'T&C Apply.

[10] Term Manipulation includes claims such as Natural, Fresh, Pure, Organic , Original , Traditional , Premium, Finest, Best , Authentic , Genuine, Real etc. Even words like, ‗Home made , Home Cooked, may give an erroneous impression to the consumer and should not be used to mislead them.

[11] Section 2(1)(r) of the Consumer Protection Act, 1986.

[12] Section 2(28) of the Consumer Protection Act, 2019 defines misleading advertisement as any advertisement in relation to product or service which (i) falsely describes such product or services or (ii) gives a false guarantee to or is likely to mislead the consumers or (iii) conveys an express or implied representation which would constitute an unfair trade practice or (iv) deliberately conceals important information.

[13] Section 10 of the Consumer Protection Act, 2019.

[15] Article 19(2) of the Constitution of India.

[16] Hamdard Dawakhana v. Union of India;

[17] Tata Press Ltd. V. Mahanagar Telephone Nigam Limited and Ors. AIR 1995 SC 2438.

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