Author Name:   ranganathvg@legalserviceindia.com

Misleading and false advertisements are not just unscrupulous; they warp competition and of course, consumer choice. False and misleading advertisements in fact violate several basic rights of consumers: the right to information, the right to choice, the right to be protected against unsafe goods and services as well as unfair trade practices...

Instances of Disingenuous Advertisements & Consumers

The sway of advertisements on consumer picking is incontrovertible. And it’s this information that makes it very important that advertisements be fair and truthful. Misleading and false advertisements are not just unscrupulous; they warp competition and of course, consumer choice. False and misleading advertisements in fact violate several basic rights of consumers: the right to information, the right to choice, the right to be protected against unsafe goods and services as well as unfair trade practices.

Since advertisements are fundamentally destined to promote a product or a service, one does see some hyperbole in the way they eulogize the qualities of the product. But when it goes beyond that and intentionally utters a falsehood or tries to pull the wool over your eyes regarding facts thereby misleading the consumer, then it becomes objectionable.

On what circumstances an Advertisement become ‘misleading’?
When an suitable for eating oil advertisement gives you the consciousness that your are free of heart problems so long as you are using that particular oil, then it is misrepresenting facts. When an advertisement of a water purifier that filters only bacteria but not viruses assert that it gives 100 percent safe water, then it is a false statement. When a cell phone service providers swears STD calls for 10 paise per minute, but omits to say that this rate is applicable only when calls are made to another mbile of the same company, then it constitutes misrepresentation. Correspondingly, when an advertiser or a manufacturer makes a claim about a product, he should be able to prove it or else it becomes a false statement. If he says that his refrigerator is the best or that it keeps the food inside germ-free, that claim should be backed by adequate scientific data that substantiates the claim. Or else, it becomes a false statement. Similarly, if an advertisement for a detergent says that it can remove grease in just one wash. It should be able to do just that and the manufacturer should be able to prove this. Or else, it is an incorrect statement or a false achievement.

When an advertisement assures to give you a compliment or free gift whenever you busy the advertised product, the free gift should really be so. If the manufacturer is recovering either fully or even partly, the cost of the so called free gift, then the advertisement becomes a false or a misleading claim, coming under the definition of unfair trade practice. Similarly, if a retailer assures that he is offering, a special discount or offer on his goods as part of a festival celebration, while he is actually using the festival as an reason to get rid of old and obsolete goods, then he is misleading and deceiving consumers.

When a toothpaste advertisement articulates that it avoids cavities, one expects the manufacturer to have the data to prove this. If the manufacturer to do that, then he is making an uncorroborated claim or a false statement. If an advertisement for a face cream claims that it does away with dark spots on the face cream and even eradicates them from coming back, the manufacturer should be competent to establish this. If not, it is a deceptive advertisement.

Smoothly, reducing fundamental information about the product to tiny letters at the bottom of the advertisement could be termed as an unfair trade practice, particularly if such information is not comprehensible to the consumer. In reality, the National Consumer Disputes Redressal Commission warned against advertisements that use fine print to hide crucial information pertaining to products and services, thereby misleading the consumer. Generally, one can classify false and misleading advertisements into two groups. In the first group would be those that basically violate the consumers’ right to information and choice thereby have the potential to cause the consumer, financial loss and even mental agony. The second classify would include those that advertise health cures and drugs of dubious efficiency and health tools of unidentified values. This class of advertisements is the most dangerous, as they can also have a severe consequence on the health of the consumer.

Protection under various Laws, Regulations and Codes that deal with Advertisements that is anti-consumer.

The following are the number of laws, regulations; codes regulate advertisements and protect the interests of consumers. But only laws like the Consumer Protection Act and the Monopolies Restrictive Trade Practices Act, Food Safety and Standards Act provide for compensation to the consumers affected by false and misleading advertisements are defined as “unfair trade practices”.

General Principles restricting misleading advertisements:
i. Advertising and communication for food and beverages should not be misleading or deceptive. This means that claims about particular ingredients in a food and beverage product or the underlying health benefits thereto should have a sound, authentic scientific basis and supported by evidence whenever required.

ii. Advertising and/or marketing communications for food and/or food & beverage products that include what an average consumer, acting reasonably, might interpret as health or nutrition claims shall be supportable by appropriate scientific evidence and should meet the requirements of the basic Food standards laid down under the Food Safety Standards Act , 2006 and rules, wherever applicable.

iii. Advertisements should not disparage good dietary practice or the selection of options, such as fresh fruit and vegetables that accepted dietary opinion recommends should form part of the average diet.

iv. Advertisements should not encourage excessive consumption or inappropriately large portions of any particular food. They should not undermine the importance of healthy lifestyles. Advertisements should rather try to promote moderation in consumption and the need to consume in suggested portion sizes.

v. Care should be taken to ensure advertisements do not mislead as to the nutritive value of any food. Foods high in sugar, fat, TFA and/or salt should not be portrayed in any way that suggests they are beneficial to health.

vi. Communications for Food and/or Beverage Products including claims relating to material characteristics such as taste, size, suggested portions of use, content, nutrition and health benefits shall be specific to the promoted product/s and accurate in all such representation.

vii. Advertisements should not mislead consumers especially children to believe that consumption of product advertised will result directly in personal changes in intelligence, physical ability or exceptional recognition unless supported with adequate scientific evidence.

viii. Advertisements containing nutrient, nutrition or health claims and advertisements directed at children should observe a high standard of social responsibility.

ix. Communications for Food and/or Beverage Products not intended or suitable as substitutes for meals shall not portray them as such.

x. Claims in an advertisement should not be inconsistent with information on the label or packaging of the food.

xi. Advertisements for food and beverages should not claim or imply endorsement by any government agency, professional body, independent agency or individual in particular profession in India unless there is prior consent, the claim is current and the endorsement verifiable and the agency or body named.

xii. Celebrities or prominent people who promote food should recognize their responsibility towards society and not promote food in such a way so as to undermine a healthy diet.

xiii. Advertisements should not undermine the role of parental care and guidance in ensuring proper food choices are made by Children

xiv. Advertisers and communicators must recognize their social and professional responsibility towards promoting a healthy lifestyle and strive to achieve high standards of public health. All advertisements and communications should be thus truthful, legal, decent and honest reflecting their social and professional responsibility.

Conclusion:
“To establish a favorable and well-defined brand personality with the consumer the advertiser must be consistent. You can't use a comic approach today and a scientist in a white jacket tomorrow without diffusing and damaging your brand personality.”-Morris Hite

“Competition is not only the basis of protection to the consumer, but is the incentive to progress.”
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# The Author is V.G.Ranganath, Faculty Member, Faculty of Law, IFHE University (ICFAI), Hyderabad and Research Scholar (part-time), Dr.B.R. Ambedkar College of Law, Andhra University, Visakhapatnam

The  author can be reached at: ranganathvg@legalserviceindia.com

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