In this blogpost, Priyanka Kansara, Student, National Law University, Jodhpur writes on misleading marketing practices, laws related to them and also the consumer protection law related to the advertisement in India.
Consumers should have the right of access to non-hazardous products, as well as the right to promote just, equitable and sustainable economic and social development and environmental protection,”- United Nations Guidelines for Consumer Protection
In the shining valley of technology and modernization, on one hand, we have got the boon of more and more tech-savvy substances; on the other hand, it has created chaos for the Consumers. In the era of competition, the technical evolution has drastically changed the face of marketing and advertising sector. the advertisement is the entrance gate for the Marketing and Business Sector. Consumers while purchasing a product on the basis of advertisements does not only purchase the product but looks at the goodwill of the Company also. Advertisement and Consumer Behavioural pattern should balance well with each other. The misstatement in the advertisement creates class consciousness, materialism, conspicuous consumption and other universally non-acceptable values[1].
The Broadcast Regulatory Authority of India and the Advertising Standard Council of India play an important role in the advertising sector for the proper Customization, Standardization, Competition and Control of the mismanagement. It is essential to put an eye on the Media Sector through certain other Policies, such as, Development of Virtual Community, the media is keeping in mind the Consumers’ moral and ethical values as well as their basic needs. Besides this, sensitization of the Market holder is needed to ensure the understanding of them towards the Customers. Right to Information and Right to Choice should be the benchmark for any advertisement.
What is Misleading-?
Advertising through several media broadcasting sources for the promotion of several articles, which affects the consumers’ day to day life, lifestyle, health are a cause for concern because it directly impacts on the consumers’ rights ultimately. As per the IRDA (Insurance Advertisements and Disclosure) Regulations, 2000[2] misleading or unfair advertisement means any advertisement (a) that fails to clearly identify the product as insurance; (b) makes claims beyond the ability of the policy to deliver or beyond the reasonable expectation of performance; (c) describes benefits that do not match the policy provisions; (d) uses words or phrases in a way which hides or minimizes the costs of the hazard insured against or the risks inherent in the policy; omits to disclose or discloses insufficiently, important exclusions, limitations and conditions of the contract; gives information in a misleading way; illustrates future benefits on assumptions which are not realistic nor realisable in the light of the insurer’s current performance; where the benefits are not guaranteed, does not explicitly say so as prominently as the benefits are stated or says so in a manner or form that it could remain unnoticed; implies a group or other relationships like sponsorship, affiliation or approval, that does not exist; makes unfair or incomplete comparisons with products which are not comparable or disparages competitors[3].
Advertisement Standard Council of India, which is a self-regulatory body, was established in 1985 to promote and control advertising sector. The objectives of the establishment of ASCI are to ensure the truthfulness and honesty in representation and claims made by an advertisement. To ensure generally accepted the standard of public decency in the advertisement, to safeguard against the indiscriminate use of advertising for the promotion of products regarded as hazardous to society or to individual, to ensure the fairness in the competition in the advertising sector and to ensure the generally accepted competitive behaviour in the advertising sector.[4] Furthermore, any complaint can be lodged with regard to the misleading in advertisement against media sector (lodge your complaints ), and we can trace our complaints (trace your complaints )
Several important legal provisions in the advertising sector
The Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 prohibits certain kinds of advertisements such as, the procurement of miscarriage of women or prevention of conception in women, the maintenance and improvement of the capacity of human being for sexual pleasure, and correction of menstrual disorders in women[5]. Section 4 and section 5 prohibits the advertisement of drugs[6] and magic remedies[7] which may put some false impressions either directly or indirectly respectively. Though in this era of competition in the pharmaceutics industry, there is a need of advancement in the law.
The Cigarette and other Tobacco Products (prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Act 2003[8] provides that no person will engage in or purported to be engaged in the production, supply or distribution of cigarette or any other tobacco product shall advertise, and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products through that medium, and no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products.[9] Furthermore, an amendment was introduced in section 7 of the Act 2003 that “the specified warning including a pictorial depiction of skull and cross bones and such other warning as may be prescribed, the words such specified warning including a pictorial warning as may be prescribed” shall be substituted”[10].
Furthermore, the Food Safety and Standard Act, 2006[11] prohibits the false representation about the sale, supply, use and consumption of articles of food or adoption of any unfair or deceptive practice including the practice of making any statement.[12] Section 25 (2) of the Act provides for certain norms as per the Act while prohibiting, restricting or otherwise regulating the import of article of food under the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992)[13]. Furthermore, certain legal norms such as the Bureau of Indian Standards Act, 1986[14], Infant Milk Substitute, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992[15] and the Infant Milk Substitute, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Amendment Act, 2002[16].
Moreover, certain regulations were made, such as, the Telecommunication Regulatory Authority of India (TRAI) had come with a regulation on March 22, 2013, titled, Standard of Quality of Service (Duration of Advertisement in Television Channels) (Amendment) Regulations 2013, restricting advertising time on television channels to twelve minutes per hour[17]. As per TRAI, some channels show an advertisement for more than thirty minutes[18]. The reason for making this regulation is prescribed under the notification by stating that the duration of advertisements carried, during the programs in the TV channel is closely related to the quality of the viewing experience of the consumers, and the quality of viewing experience of the consumers is akin to the quality of the service provided by the service providers to the consumers[19]. Moreover, all the advertisement should be routed through the Directorate of Advertising and Visual Publicity (DAVP).[20]
Author’s remark
Bollywood actress Kangana Ranaut had turned down the offer to advertise for a fairness product as she thought that as an actor she has some responsibilities towards the society[21]. The featuring of actors for certain products should be based on a value system. Certain benchmarks for the actors should also be put forth to remove the delusion in the advertisement sector. The advertisement is not just a mousetrap to catch the Consumers; it is also to create awareness among the Consumers about the product so that they can enable themselves to realize the value of the product as per their needs. It is important to understand as to how media plays an important role in influencing consumer behaviour towards the market from legal perspective and how they should know that, not all that is lovely
[1] Misleading Advertisements and Consumer, Pushpa Girimaji, Centre for Consumer Studies: Indian Institute for Public Administration, http://consumeraffairs.nic.in/WriteReadData/userfiles/file/misleading_advertiesment_and_consumer%20(1).pdf (accessed on December 22, 2015).
[2] The IRDA (Insurance Advertisements and Disclosure) Regulations, 2000, Insurance Regulatory Development Authority, IRDA/Reg./7/2000, the Gazette of India, July 14, 2000, https://www.irda.gov.in/ADMINCMS/cms/frmGeneral_Layout.aspx?page=PageNo61&flag=1 (accessed on December 23, 2015).
[3] id.
[4] The Advertising Standard Coucil of India, http://www.ascionline.org/; also mentioned in India: Advertising and Marketing Advertising Law, Global Jurix, http://www.globaljurix.com/our-publications/advertising-and-marketing-law-india.pdf (accessed on December 22, 2013).
[5] S. 3, the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, Act No. 21 of 1954, April 30th, 1954, http://www.rfhha.org/images/pdf/Hospital_Laws/Drugs_magic_remedies_(%20advertisement)_act.pdf (accessed on December 23, 2015).
[6] S. 4, id.
[7] S. 5, id.
[8] Act No. 34 of 2003 (published on May 18th, 2003).
[9] id, s. 5, Prohibition of Advertisement of cigarette and other tobacco products.
[10] The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Amendment Bill, 2007 Bill No. 62 of 2007, http://www.prsindia.org/uploads/media/1187692259/1187692259_CIGARETTE.pdf (accessed on December 22, 2015).
[11] S. 24, the Food Safety and Standard Act 2006 (Act No. 34 of 2006), August 23rd, 2006, http://www.fssai.gov.in/portals/0/pdf/food-act.pdf (accessed on December 23, 2015).
[12] id.
[13] id.
[14] ss. 3 & 4, the Infant Milk Substitutes, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Amendment Bill, 2002, http://indiacode.nic.in/incodis/whatsnew/Infant_Milk.htm (accessed on December 23, 2015); also cited in Misleading Advertisements and Consumer, Pushpa Girimaji , Supra Note 1.
[15] ss. 3 & 4, Feeding Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act, 1992 (Act No. 41 of 1992), http://www.bis.org.in/cert/G-258.pdf (accessed on December 23, 2015).
[17] Telecom Regulatory Authority of India Notification, to be published in the Gazette of India, Extraordinary, Part III, Section 4, http://trai.gov.in/WriteReadData/WhatsNew/Documents/draft%20amendment.pdf (accessed on December 22, 2015).
[18] TRAI notifies 12-minute per hour advertising rule for TV Channels, live mint, March 22, 2013, http://www.livemint.com/Consumer/V5AWQ1qyD8XeIxg26HMRpJ/Trai-notifies-12minute-per-hour-ad-rule.html (accessed on December 22, 2015).
[19] id.
[20] Directorate of Advertising and Visual Broadcasting, terms and conditions for creative agencies empanelled with DAVP, http://davp.nic.in/term_cond.html (accessed on December 22, 2015).
[21] Kangana Ranaut rejects fairness cream ad deal worth 2 crore, the Express Tribune, May 24, 2015, http://tribune.com.pk/story/891486/kangana-ranaut-rejects-fairness-cream-ad-deal-worth-rs-2-crore/ (accessed on December 23, 2015).
