Image source - https://bit.ly/37sibYs

This article is written by Rashmi Jha from Amity University, Mumbai. This article gives a brief about deceptive advertising and provides regulations to control it.

Introduction

The impact of advertisements on consumer rights is unquestionable, and this reality makes it imperative that promotions be reasonable and honest. Misdirecting and bogus notices are not just untrustworthy, but they also contort rivalry and, of course, customer decisions. False and misdirecting ads in truth disregard a few essential privileges of purchasers – the right to data, the right to decide, the option to be secured against dangerous products, etc. Since advertisements are essentially intended to advance an item or assistance, one sees some distortion in how they praise the ideals of the product or service. In any case, when it goes past that and purposely articulates a lie or attempts to distort realities, deceiving the customer, then at that point, it becomes questionable. For example, when a vegetable oil advertisement gives you the feeling that you are liberated from heart issues as you are utilising that specific oil, then, at that point, it is misrepresenting a factor when a cell phone service provider promises STD calls for 40 paise per minute but omits to say that this rate is applicable only when calls are made to numbers serviced by the same provider, it constitutes misrepresentation.

The false misrepresentation can be classified into two broad categories:

  • The first category involves advertisements that hawk health cures and medications of questionable adequacy and health gadgets of obscure qualities and aid-related false claims, especially those focusing on children, old age, and those with certain medical conditions, for example, diabetes. 
  • In the second category, other kinds of false and misleading advertisements, fraudulent and deceptive advertisements are involved (non-health, vitamins related), violating the consumers’ right to information and choice and thereby causing the consumer monetary loss and even intellectual agony. 

False and misleading advertisements now have a broader basis: in the past, they were only seen in print media, appeared together with other mainstream media (such as brochures and fees), and are now seen on TV, affecting more people, even illiterates.

Indian laws and regulations on misleading advertisements

The Consumer Protection Act, 2019

  • The Consumer Protection Act of 2019 came into effect in 2020. In a video conference, Sri Ram Vilas Paswan, who was the former head of the Ministry of Consumer Affairs, Food and Public Distribution, briefly introduced the 2019 Consumer Protection Act to the media. He had stated that this new legislation will empower consumers and pass various rules and regulations to help them protect their rights through multiple provisions, such as consumer protection advice, consumer dispute resolution committees, mediation, product liability, and penalties for product manufacturing or sales. It promotes, protects and enforces consumer rights.
  • The legislation provides for establishing the Central Consumer Protection Authority (CCPA) to prevent unfair business practices in e-commerce. CCPA will have the power to investigate consumer abuse, initiate complaints/harassment, order the recall of unsafe products and services, prohibit unfair business practices and misleading advertising, and sanction advertisers/sponsors/publishers. The rules to prevent unfair business practices on e-commerce platforms will also be bound by the law. 
  • As per the legislation, all e-commerce companies must provide information about returns, refunds, exchanges, warranties and guarantees, shipping and delivery, payment methods, exclusion mechanisms, payment method security, payment refund options, etc., including the country of origin, which is necessary for consumers to make informed buying decisions on these platforms.
  • It is also stated that e-commerce platforms must confirm the receipt of any consumer complaints within 48 hours and resolve them within one month from the date of receipt of the complaint under the law. Shri Ram Vilas Paswan had further stated in the video conference that the new law introduces the concept of product liability and enables product manufacturers, product service providers, and product sellers to make any claims for damages. 
  • The legislation also optimises the process of resolving consumer disputes at the Consumer Council, including (but not limited to) authorising state and regional committees to review their orders and enabling consumers to file complaints electronically and lodge a complaint with a qualified consumer council at the location complaint. If the acceptance issue is not resolved within the specified 21 days, a complaint can be filed in Consumer Commissions that have jurisdiction over the residence, videoconferencing for hearing and deemed admissibility of complaints.
  • The new law also provides a mechanism for resolving disputes through mediation and simplifies the arbitration procedure. If any reservations are approved in advance and both parties agree to it, the Consumer Council will file a complaint concerning mediation. The mediation panel is established under the auspices of the Consumer Protection Commission, so there will be no appeals for mediation in the court. According to the Consumer Protection (General) Rules, 2020, there can be no fee for cases up to Rs. 5 lakh. There are provisions for filing proceedings electronically, credit of amount because of the unidentifiable consumer to Consumer Welfare Fund (CWF).
  • The State Commissions will supply data to the Central Government on a quarterly foundation basis on vacancies, disposal, the pendency of instances, and different matters. During the earlier Consumer Protection Act, 1986, a single factor to get the right of entry to justice was given, which is likewise time-consuming. The new Act has been delivered after many amendments to offer safety to consumers from corrupt shopkeepers and also from new e-trade retailers/platforms. The Act will show an important tool in protecting the rights of consumers in the country.

The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 (CTP Act)

The CTP Act prohibits the direct or oblique advertisement of cigarettes or other tobacco merchandise in all styles of audio, visual, and print media (Section 5 of the CTP Act) and presents that any individual in contravention of such prohibition might be at risk of being punished with imprisonment of two years or fine of  INR. 1,000 (Rupees One Thousand Only) or both, which can be prolonged to a period of five (five) years or INR. 5,000 (Rupees Five Thousand Only) or both (Section 22 of the CTP Act). The CTP Act additionally permits authorized organizations, the power of search, seizure, forfeiture, and confiscation in admiration of any commercial of cigarettes or other tobacco merchandise (Sections 12, 13, 14, and 23 of the CTP Act).

The Cable Television Networks (Regulations) Act, 1995 (CTN Act)

  • The CTN Act prohibits anyone from rebroadcasting programs (including advertisements under Section 2(g) of the CTN Act) through cable television unless the guidelines provide for the same. 
  • As per Rule 7 of the Cable Television Networks (Amendment) Rules, 2006, a body of rules framed under the CTN Act, cable service providers must ensure that no such advertisement is aired that is offensive to the viewers’ decency, morality, and religious susceptibilities.

Other laws related to advertising in India

Some Indian laws that apply to advertising include the following:

It is pertinent to note that the above-mentioned laws are fully exhaustive and there are various other local, state, and central laws governing advertising.

The need for change and what future needs to be

In any case, the greater part of the change in law doesn’t clarify the idea of deceptive advertisement exhaustively. Other than the above-given enactment there is a likewise self-administrative body, in particular, the Advertising Standards Council of India which manages advertisement in India. ASCI is a non-statutory body leased to guarantee moral practices in promoting ethical advertisement and is composed of advertisement media, publicising genies also other experts/auxiliary administrations associated with promoting. ASCI has likewise fostered an ASCI Code that is voluntarily adhered to by those in the industry but it is in no way compulsory. 

India has a gigantic exhibit of general just as a sectoral enactment to resolve misleading advertisements. Understanding the sequence of legislation, the example of a deceptive advertisement in India is on the rise. A thorough investigation of the current laws and case laws and oneself – administrative specialists are needed to thoroughly explain the understanding, check, and medicinal component of misleading advertisement in India. Also, ASCI has been recognised after various legislation and partnership with the Department of Consumer Affairs to address all complaints relating to misdirecting advertisements on the Grievances Against Misleading Advertisements portal.

The ASCI and ASCI Code lack in managing the advertisement area. Further, rather than combining the divided enactments regarding tending to the contentions brought about by the absence of a uniform enactment, all that the ASCI Code does is give an instrument to help the current framework as it remains without tending to any lacks in that. Moreover, given the intricacies and the assets associated with the publicizing areas, it is credulous to believe that a self-directed body with no legal authority may adequately answer the developing worries of purchaser rights and business necessities in the current age.

The (Insurance Advertisements and Disclosure) Regulations, 2000, developed by the Insurance Regulatory Development Authority of India, prohibit unfair and misleading advertisement that the product is not marked as safe, claims beyond the capacity of the policy to meet or exceed reasonable expectations of results, describe services that do not meet the guidelines, use words or phrases in a certain way to hide or minimize the risk of your insurance or the value of risks associated with the insurance policy, non-disclosure or non-disclosure of important exclusions, restrictions, and conditions of the contract, and providing misleading information. The IRDA not only sets strict regulations on the content of advertisements published by insurance companies and their agents but also requires compliance with these regulations. Insurance policy advertisements should never be unfair or misleading. Most importantly, it also allows the controller to directly let go of the declaration method the same as the original declaration.

Advertising Expenditure Forecasts, March 2018, distributed by Zenith Media, predicts that the worldwide promoting use is set to increment by $77,000,000,000/- (Seventy-Seven Billion United States Dollars Only) between the years 2017 to 2020 and that India will be the fourth biggest supporter of the equivalent.

With the developing impact of the internet, mobiles, and advanced media, the conventional methods for promoting are evolving quickly. Along these lines, any enactment relating to promoting would need to guarantee that it tends to the changing patterns publicizing and oblige the necessities of the powerful trendy correspondence channels. For example, Indian legislators would be insightful to take a leave from the Federal Trade Commission’s Endorsement Guidelines declared by their partners in the United States of America to address the recently discovered pattern of unobtrusive notices through Instagram profiles where VIPs ‘honestly’ propose that they utilize certain items.

In addition, as mentioned above, the advertising industry is in a unique position. There is no single law on this issue, but each sector has ‘too many laws’. For relevant stakeholders, we, therefore, assume that the sector urgently needs legislators to integrate these different regulations and law enforcement agencies into a ‘single legal’ agency.

Conclusion

Due to the increasing influence of advertisement in our society and the rapidly changing industry trends, the existing mosaic supervision system is no longer sufficient to supervise the advertising industry effectively. These days, consumers have become more vulnerable through advertising from billboards and subtle Instagram posts. Traditional advertising issues, such as misleading prices, misleading opinions, labelling issues, etc., have now been added to modern issues. The increasing risks associated with advertising make it essential for consumers to know what they can and cannot do. In addition, as competition intensifies, most companies need to be protected from contemporaries who despise their products or engage in dishonest business practices. Therefore, the national advertising law must continue to be effective. The need to formulate a unified legal framework to regulate advertising is more urgent than ever. It is hoped that the national government can respond to prayers for the codification of such advertising laws as soon as possible in the Legislative branch.

References

  1. https://www.ftc.gov/tips-advice/business-center/guidance/advertising-marketing-internet-rules-road
  2. https://taxguru.in/corporate-law/consumer-protection-act-2019-false-misleading-advertisements.html#:~:text=The%20New%20Act%20empower%20the,enforce%20the%20rights%20of%20consumers.&text=The%20authority%20will%20have%20the,a%20false%20or%20misleading%20advertisement.
  3. .https://www.businessinsider.in/advertising/brands/news/the-new-consumer-protection-act-2019-provision-for-heavy-fines-and-even-jail-terms-for-misleadings-ads/articleshow/77065225.cms
  4. https://prsindia.org/billtrack/the-consumer-protection-bill-2019
  5. https://www.consumerprotection.govt.nz/general-help/common-consumer-issues/misleading-prices-or-advertising/

LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

LEAVE A REPLY

Please enter your comment!
Please enter your name here