This article is written by Divya Kathuria, 3rd year B.A.LLB student(School of law, Raffles University, Neemrana).

Taste bhi, Health bhi!

Maggi mili din ban gya!

These slogans used while endorsing for 2-minutes noodles by big celebrities like Amitabh Bachan, Madhuri Dixit and Preity Zinta attract even more consumers to it than it would be able to attract if such slogans had been uttered by a non-celebrity. May be, nobody would pay any heed towards such two-liners then. It is the celebrities who bring the charm in the advertisement, reduce half of the marketing work for companies and attract numerous customers. It is a usual trend in India that people would love to follow the celebrity or say, idolize them. People here consider Sachin Tendulkar as God, public who desperately wants justice in every case wants Sallu Bhai to be forgiven in Hit and Run case for being human and what not happens in our country full of emotions and emotionals. So, watching Shahrukh Khan applying fair and handsome on his face would fetch more customers than Vicco turmeric which is endorsed by a non celebrity, watching Katrina Kaif using veet would definitely attract girls because every other girl in the country wants flawless skin like her and same is the case with maggi. Watching the fitness queen Madhuri who is not only a role model for girls but also for mothers, making her children eat maggi after an exercise session will undoubtedly affect the minds of younger as well as older ones. So, there is no doubt that promotion of any product by such stars makes the product effective and its hold on the market gets stronger. The positive acceptance of celebrity endorsements is quite pervasive and it’s not surprising that more than 50% of commercial ads portray them. When a brand or product is promoted by a well-known personality, it helps to increase the volume of sales, creating a mutual benefit to the company and the celebrity.[1] It is the influence of celebrity that the company wants to create otherwise, a company is not foolish to pay crores of rupees to famous actors and cricketers for endorsing their product which a non-famous artist would be ready to do in just thousands.

What is Maggi Fiasco?

All glitters is not gold! That’s the message the recent controversy gives us. Healthy oats maggi might be endorsed by Madhuri, but need not necessarily be the secret of her and her children’s fitness while consumers most of the time foolishly believe so.

Union Food and Consumer Affairs Minister Ram Vilas Paswan on Wednesday (3rd June, 2015) ordered safety checks on Maggi instant noodles after food inspectors in several states said the test batches of the popular snack were found to contain dangerous levels of lead.[2] The Food Safety and Drug Administration in Uttar Pradesh found lead content of 17.2 parts per million (ppm) in routine tests on Nestle instant noodles – seven times the legal limit.
In response, Nestle India said that it had conducted internal and external tests of 125 million Maggi packets which showed “lead levels are well within the limits specified by food regulations and that Maggi noodles are safe to eat.”[3] The prescribed maximum limit of lead is 2.5 ppm,” the Delhi government statement said. Stating that “five samples of masala were also having monosodium glutamate without proper label declaration”, the government said it falls “under the category of misbranding”. This follows a recall order for a particular batch of the noodle brand by the Uttar Pradesh Food and Drugs Authority in April this year, after allegations that its samples were found to have higher-than-permissible levels of lead.[4]

How far are the celebrities liable as per law?

First of all, it falls within the category of ‘misbranding’ as the government too stated. It is defined under Section 2(zf) of Food Safety and Standards act, 2006:-

(zf) “misbranded food” means an article of food – (A) if it is purported, or is represented to be, or is being – (i) offered or promoted for sale with false, misleading or deceptive claims either; (a) upon the label of the package, or  (b) through advertisement … (B) if the article is sold in …or (ii) the package containing the article or the label on the package bears any statement, design or device regarding the ingredients or the substances contained therein, which is false or misleading in any material particular, or if the package is otherwise deceptive with respect to its contents; … (C) if the article contained in the package – (i) contains any artificial flavoring, coloring or chemical preservative and the package is without a declaratory label stating that fact or is not labeled in accordance with the requirements of this Act or regulations made there under or is in contravention thereof; or … under this Act.

If the allegations on the famous product are true, it would fall within the category of misbranded food as defined by FSSAI that is, it offers false, misleading and deceptive claims about quantity of lead and MSG in it upon the label of package as well as through advertisements that it provides taste as well as health. The article does not focus upon discussing whether the company is liable or not or if the allegations raised by government against the company are true or not. It just seeks to discuss if the allegations are true, how far it is practicable to blame its present and previous brand ambassadors.

Well, going in the same direction, we come across Section 24 of the 2006 Act which puts restrictions of advertisement and prohibition as to unfair trade practices:-

24. (1) No advertisement shall be made of any food which is misleading or deceiving or contravenes the provisions of this Act, the rules and regulations made there under. (2) No person shall engage himself in any unfair trade practice for purpose of promoting the sale, supply, use and consumption of articles of food or adopt any unfair or deceptive practice including the practice of making any statement, whether orally or in writing or by visible representation which – (a) falsely represents that the foods are of a particular standard, quality, quantity or grade-composition; (b) makes a false or misleading representation concerning the need for, or the usefulness; (c) gives to the public any guarantee of the efficacy that is not based on an adequate or scientific justification thereof: Provided that where a defense is raised to the effect that such guarantee is based on adequate or scientific justification, the burden of proof of such defense shall lie on the person raising such defense.

So, as per law, anybody who is endorsing a product which is misleading or deceiving would be liable under the law, not just celebrities. Not only this, but a penalty too can be imposed upon them as per section 53.[5]

Well, in short, the laws of country clearly shout that celebrities can be made liable about which every other newspaper has stated. Now, the question is whether it is right to do so or not? If yes, why?  If no, why not? Like every coin has two sides, this controversy too can be argued either ways.

Yes! They can be made liable

No doubt can be posed to the fact that advertisements a strong impact on the society and celebrities become a part of customer preferences as a strong impact on the society and celebrities become a part of customer preferences. Celebrities are celebrities because people and their fans made them so. They make huge profits in their profession because their fans spend money to watch their movies and other stuffs. So, what I mean to say here is that if they take so much from the society then, don’t they owe just this much to the society that they must not endorse the products without looking into their quality just for the sake of making huge monetary profits. In this modern world where the law has evolved to such an extent that even a corporation or a company being an artificial person has a corporate social responsibility, then why should the highly privileged citizens of the country not be made liable for endorsing the low quality products or for being so highly irresponsible towards the countrymen who have given them the status they are enjoying. Such kind of false and misleading endorsement is nothing but the exploitation of the fan following by celebrities and the big brands. With great power, comes the greater responsibility! It seriously needs to be realized by our influential and rich celebrities.

Also, it is worth noticing that endorsement has become quite competitive and it is common that celebrities to remain ahead of another chose to endorse certain production without checking their quality.

To those who say that endorsements are part of their profession, I would say that the argument makes neither rhyme nor reason. While acting in a movie or a television series, first of all, it is clearly warned that all the characters are fictitious in a disclaimer. Is that done in an advertisement too? Obviously no, because it is presumed and actually it is made for spreading information which has to be genuine. A perusal of the abovementioned legal provisions also makes it clear that the actors misleading through any advertisement can be made liable. So, I mean to convey that an advertisement related to the health of consumers can not be treated at par with a fictitious TV series or a bollywood film. They have to be beholden towards society morally as well as legally. So, it is the legal as well as social duty of celebrities to draw a line between the products they should endorse and which not. Recent example of this can be of Kangana Ranaut who refused to endorse a fairness cream because according to her being dark complexioned is not a social stigma and must not be considered inferior.[6] She does not want to send a message to the society that is against her ideology. As simple as that! Another example is of Sachin Tendulkar when he refused to endorse a liquor brand because that is hazardous to health[7] or as like P. Gopichand refused to endorse cigarettes. This means that celebrities themselves confess that they send a message to the society through such advertisements and Amitabh Bachan himself said so after he stopped working for pepsi[8] that we would not endorse anything that is misleading. This clearly means that they actually know what their responsibility is but, are ignorant. Ignorance of law is no defense. All the three celebrities in Maggi fiasco thus, had a legal responsibility to verify if maggi is healthy before claiming it to be so. Advertisement is no fiction or a source of entertainment; it is a piece of information that cannot be misleading. Actors have ignored the law on their own peril, so they have to face the consequences too.

Some might definitely say that there is freedom of speech but, in our country this freedom comes with less freedom and more restrictions mentioned in the Constitution and laws like IPC are also full of such restrictions on speech and expression. Well, if they blindly ignore laws in the wake of free expression then, I feel pity for the fans who worship such celebrities and blindly follow them.

When a celebrity is endorsing a product, common man believes their words more than any other person. So, in that sense, there exists a fiduciary duty on the part of endorser towards the consumers. It is all about trust common man poses in a celebrity when he/she endorses a product. In that case, any misuse of their position causing harm to common man should constitute as criminal breach of trust.[9]

No! they cannot be made liable

This is another side to this maggi fiasco coin. In this era, where advertisements by celebrities have become a part and parcel of our life, even a customer below the level of reasonable prudence is aware of the fact that such endorsements are just to lure the customer and nothing else. The celebrities have nothing to do with the manufacturing of the product, they just represent the product say, like an agent or however they are directed to. No doubt, they must ensure about the quality and standard of the product but, at last, they are not scientists or experts in the manufacturing of that product. They would obviously believe what the company tells them. How can you expect Madhuri Dixit to go to the laboratory for checking the samples of our national food? She will anyway have to believe what the experts of Nestle say like recently she admitted that she met the experts and was reassured about the high quality of the product. What else is she supposed to do? Also, celebrities do not enforce any personal insistence upon anybody to buy the product they are endorsing then, how can they be held liable for misrepresentation. Why don’t we question the food safety board for letting the products hazardous to health enter Indian market?

Celebrities in our country are being held liable for misleading through endorsements, accepted! Is there anybody to question the misleading advertisements by politicians in their manifesto during elections? Are they all fulfilled? The answer is obviously in negative. The problem with countrymen is that they forget to question what they should actually question. For example, BJP in its 2014 election manifesto promised that it will work to control price rise by evolving a sinle agriculture market, by setting up a price stabilization fund and what not.[10] The irony is that none of us would sue the politicians or government for misleading public but, would over hype an issue which certainly does not demand that much attention and can be tackled without so much hustle and bustle.

Conclusion

No doubt, the celebrities would be liable under FSSAI provisions but still I would recommend that issue must be resolved peacefully without any over hype. At the same time, it is definitely against the Food Standard Authorities that certain product has entered into the Indian market and has not been checked upon. Prevention is much better than cure, so, any product must not be even allowed to enter the market which does not abide by the safety and health standards of the people of country.  In my opinion, such costly endorsements by celebrities are bad for the society itself no matter the product is useful or not. It is nothing but, just wastage of money by the company which they can use for a social cause or for the welfare of the society. A law must come up that limits the amount charged by celebrities for endorsements or say, as costly the advertisement gets, more the company must be abided by law to contribute in charity or for society. The idea behind this is that it is consumers who buy the product and help in elevating the company, then, why should their money go to that portion of society which already has a lot. Such costly advertisements also tend to increase the price of the product which again is gross violation of rights of consumers and thus, needs to be curbed.

[1]http://archive.financialexpress.com/news/why-celebrities-in-india-have-runaway-success-withbrandendorsements/1178390, Why celebrities in India have runaway success with brand endorsements last visited on 4^th June, 2015

[2] http://www.ndtv.com/india-news/maggi-noodles-controversy-centre-orders-safety-checks-delhi-orders-temporary-ban-768615 last visited on 4th June, 2015

[3] Ibid

[4] http://www.mid-day.com/articles/maggi-noodles-the-entire-controversy-explained/16262172 last visited on 4th June, 2015

[5] Penalty for misleading advertisement. (1) Any person who publishes, or is a party to the publication of an advertisement, which– (a) falsely describes any food; or (b) is likely to mislead as to the nature or substance or quality of any food or gives false guarantee, shall be liable to a penalty which may extend to ten lakh rupees. (2) In any proceeding the fact that a label or advertisement relating to any article of food in respect of which the contravention is alleged to have been committed contained an accurate statement of the composition of the food shall not preclude the court from finding that the contravention was committed.

[6] http://www.thehindu.com/features/metroplus/kangana-ranaut-turns-down-offer-to-endorse-fairness-cream/article7244344.ece last visited on 5th June, 2015

[7] http://www.dnaindia.com/sport/report-sachin-tendulkar-turns-down-record-rs20-crore-a-year-offer-to-endorse-liqour-brand-1479578 last visited on 5th June, 2015

[8] http://articles.economictimes.indiatimes.com/2014-02-03/news/46963015_1_pepsico-india-kalyan-jewellers-amitabh-bachchan last visited on 5th June, 2015

[9] Section 405(IPC):- Criminal breach of trust—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits “criminal breach of trust”

[10] BJP Election Manifesto 2014, ‘Ek Bharat Shrestha Bharat’ ,http://bjpelectionmanifesto.com/pdf/manifesto2014.pdf