Advertisements have become an important medium of communication used by a product manufacturer to reach as many consumers as possible. It has been a longstanding practice for brand manufacturers to use print media, including newspapers, magazines, hoardings, and telecommunication mediums like radio, television, and the internet, to reach the mass and advertise their products. It has been an effective method used by producers all over the world; advertisements create a deep impact in the minds of their viewers and persuades them to purchase the product. With the rise in competition, brands have started making their advertisements more attractive to gather the attention of consumers. This has led to increased use of misleading statements in advertisements that adversely impact the right of consumers to choose. False and deceptive remarks like ‘world’s best product’, untrue guarantees of giving results in a short period are all examples of the same. In order to protect the public from such immoral practices, the legislature has enacted the Consumer Protection Act, 2019.
Law on false and misleading advertisements
Under the Consumer Protection Act, 2019 (COPRA, 2019), misleading advertisements have been defined under Section 2(28) as an advertisement in respect of any product or service that gives a false description of the product or gives a false guarantee as to the quality of the goods and services or represents the product, either expressly or impliedly, in such a manner as is an unfair trade practice under law or deliberately conceals crucial information regarding the product. The Act also lays down punishment for making false or misleading advertisement which is prejudicial to the interest of the consumers as imprisonment for a term which may extend to two years with fine which may extend to ten lakh rupees. More severe punishment has been prescribed for subsequent offences up to five years imprisonment or fine, extending to fifty lakh rupees. Furthermore, any person endorsing such misleading advertisements will also be liable to a penalty extending up to ten lakh rupees. Such a provision creates additional duty upon the endorser to verify the integrity of the statements and promises being made by them. This brings even the celebrities who are often made brand ambassadors to gather traction and popularity within its fold. However, if the endorser has done due diligence on their part and exercised maximum care to ensure that the statements made are true, they can escape liability under the COPRA, 2019.
Asides from the COPRA, the Advertising Standards Council of India has created its own code of standards to be adhered to by advertisers in India. However, it is pertinent to mention that these rules are ‘self-regulatory’ in nature and the ASCI greatly lacks in the enforcement of these rules. A complaint against advertisements violating the self-regulatory code can be made before a Consumer Complaints Council, but the Council only has the authority to order the manufacturers to withdraw or modify the defaulting advertisement. Since the ASCI is not a statutory body, the advertisers can disregard these provisions and broadcast their advertisements.
Judicial pronouncements on misleading advertisements
Reckitt & Colman of India Ltd. v. M.P. Ramchandran, the Calcutta High Court held that a seller could be permitted to assert that his goods or services are the best or better than that of a competitor even if such declaration is untrue provided that while making such assertion, he has compared the advantages and disadvantages of own goods or services with that of the rival brands. Nonetheless, the seller cannot be allowed to defame the goods of his rival brands.
Horlicks Ltd. v. Zydus Wellness Products Ltd., Horlicks sought a permanent injunction against Zydus Wellness Products Ltd. for the broadcast of false advertisements claiming that one glass of Complan, a product manufactured by Zydus, was better than two glasses of Horlicks, the product of the plaintiff. The Court allowed the relief, and an injunction was granted preventing Zydus from showing the advertisement. However, after Zydus agreed to modify the advertisement and issue a disclaimer regarding the quantity and size of glasses, the injunction was set aside.
In Francis Vadakkan v. The Proprietor, A-One medicals and ors., the Kerala District Consumer Grievance Redressal Commission imposed a penalty upon the brand manufacturer as well as Anoop Menon, the brand ambassador, for misleading the public by false claims in advertisements. The commercial claimed that the product being a hair growth cream, can help grow hair to three times its volume in a matter of six weeks. These claims were found to be untrue, and the aggrieved consumer approached the District Commission. The Commission declared the non-delivery of promises as a deficiency in service, and a heavy fine was imposed upon the brand manufacturer.
In Rajendra v. Union of India and Ors., the Bombay High Court restrained any good or service sale claiming it has supernatural and miraculous powers. The Court held that such practice is blatantly illegal and deceives the public at large. It was held that propagating an advertisement using the name of any God to such an article for sale and claiming that such articles have ‘special, miraculous and supernatural properties’ is prohibited by law.
Every consumer has a right to know about the details of the product so that they can make an informed decision. With the rising competition in the market and the need to make more profits each day, many brands resort to advertising their products. These advertisements are made as catchy and appealing as possible to gain traction and attract large numbers of customers. In an attempt to do this, brands sometimes cross the line and tend to falsely advertise their products and making misleading guarantees and statements that largely impact a consumer’s right. It is an unfair trade practice and has been prohibited by the Consumer Protection Act. There has been increased judicial activism in consumer protection, and consumer forams have taken complaints of false and misleading advertisements seriously and imposed heavy penalties for violation of the provisions of the Consumer Protection Act, 2019.