MISLEADING ADVERTISEMENT AND LAW TO TACKLE

THIS ARTICLE WAS WRITTEN BY TANISHA SINHA, A STUDENT OF GALGOTIAS UNIVERSITY.

INTRODUCTION

In earlier days advertising was not so influential because marketing was almost entirely unknown so the product was consumed easily as produced with no surplus remain. With the advancement in civilization and social needs the advertising market starts to grow from catching the attention via voice and drums it transferred to electronic media and pamphlets which starts to question about the truthfulness of the product as advised and to choose between rivalry brands. In 1985 advertising standard council of India (ASCI) found among 1,200 complaints against misleading advertisements 95% were dupe ads[1]. advertising today is leading to negative ascribes like making class consciousness, materialism and different qualities which are not generally acknowledged. So, consumer deception from deceiving ads and techniques to balance it are significant issues in the present commercial center. According to legal definition false advertising is the crime or tort of publishing, broadcasting, or otherwise publicly distributing an advertisement that contains an untrue, misleading, or deceptive representation or statement which was made knowingly or recklessly and with the intent to promote the sale of property, goods, or services to the public[2]. The central consumer protection authority,2019 (CCPA) comes into existence from July 2020 to empower consumers and help them in protecting their rights through various notified rules and prevention from unfair trade practice by e-commerce platforms.

CONSTITUTIONAL PROTECTION-

 ROLE OF CCPA

“Consumer Protection Act 2019 will be a significant tool in protecting consumer rights; provides for simplifying the consumer dispute adjudication process and introduces concept of product liability”

 – Shri Ram Vilas Paswan

Section 10(1), of the CCPA Act, provides the foundation of a ‘Central Consumer Protection Authority’ (central authority) to manage matters identifying with violation of right of consumers, unfair trade rehearses and false or deceiving advertisements which are biased to the interests of people in general and customers and to advance and enforce the rights of consumers as a class.

The Central Authority confer wide-ranging powers under the Act and can discharge functions which are regulatory, investigative or adjudicatory in nature which includes:

• Section 18(2)- Can inquire or command an inquiry into violation of consumer rights or unfair trade practices, either by suo moto or on a complaint on the direction of government.
• Section 20-Recall goods or withdraw services which are dangerous, unsafe or hazardous, or direct repayment of the costs of products or administrations so recalled or discontinuation of unfair practices after giving the chance to an individual of being heard
• Section 18- engage and promote consumer advocacy include by filing complaints before the commission constituted under the act intervening in proceedings, recommending remedial measures, spreading awareness and informing safety alerts to consumers.
• Section 21- issue direction, after examination, to a dealer or maker or endorser or advertiser or distributer to discontinue false or misleading advertisements biased to consumer, and to force money related punishments up to Rupees ten lakhs

Under this act each web-based business element is needed to give data identifying with return, refund, exchange, guarantee and warranty, delivery and shipment, methods of payment, complaint redressal mechanism, security of payment methods, charge-back alternatives, and so on including country of origin which are vital for empowering the consumer to settle on an educated choice at the pre-purchase stage on its platform. He said that web-based business stages need to recognize the receipt of any purchaser grievance inside 48 hours and review the objection inside one month from the date of receipt under this Act. He further added that the New Act presents the idea of product liability and brings inside its degree, the item maker, product service provider and product seller, for any case for compensation.

PRINCIPAL OF ASCI (ADVERTISING STANDARD COUNCIL OF INDIA)

1.To guarantee the honesty and genuineness of portrayals and claims made by commercials and to protect against misdirecting notices.

2. To guarantee that ads are not offensive to generally acknowledged principles of public conventionality.
3. To shield against the aimless utilization of promoting for the advancement of items which are viewed as risky to society or then again to people to some extent or of a kind which is inadmissible to society on the loose.
4. To guarantee that advertisement notice decency in rivalry with the goal that the consumers should be educated on decisions in the commercial centre and the cannons of commonly acknowledged serious conduct in business are both served.

 On receipt of a complaint, ASCI look for the remarks of the advertiser and allows him fourteen days to react. And afterward puts the reaction and the complaint before the Consumer Complaints Cell (CCC) of ASCI for their choice. In the event that there is no reaction from the sponsor, CCC can take an ex-parte choice. The CCC has 12 non-advertising experts (counting consumer activists) and nine promoting specialists from the part firms. On the off chance that, in the assessment of CCC, a commercial disregards ASCI’s code, at that point the advertiser is asked to either pull out the ad or adjust it. While ASCI individuals will undoubtedly conform to the choice of CCC, in regard of others, ASCI attempt to convince them and if fundamental uses peer bunch impact and strain to accomplish its goal.

Acting against scores of misdirecting promotions, advertising regulatory body-ASCI is venturing up its mission to scour advanced stages clean with a new activity that urges crowds to report objectionable ads. #ChupNaBaitho, a computerized campaign by the ASCI, is important for a several initiatives planned by the self-administrative body for 2021.

TYPES OF DECEPTION USED

1. Photo editing- example, used in weightloss commercials
2. Hidden fees and surcharges- for example tax, shipping fees, insurance etc.
3. Filers and oversized packing- example of this, where meat is injected with brothor even brine
4. Misleading health claims- highlighting certain contents is misleading consumers into thinking they are buying healthy when in fact they are not
5. Comparative advertising- In recent case of Horlicks Limited v. Zydus Wellness Products Limited[3](“Horlicks case”) where HC dealt with law related to misleading and disparagement where it passed an interim order restraining Zydus from displaying its ad comparing to complan (Zydus product) with its 1 glass equivalent to 2 glass of Horlicks.
6. Puffing- Puffing or puffery is the act of misrepresenting an item’s worth using useless unsubstantiated terms, in light of assessment as opposed to fact and now and again through the control of data Examples of this incorporate numerous superlatives and statements, for example, “most noteworthy ever”, “best around” and “out of this world” or a restaurant guaranteeing it had “the world’s best tasting food”. Though it’s not illegal, In Reckitt & Coleman Of India Ltd. v Kiwi T.T.K. Ltd[4], The Delhi High Court held that the sponsor can guarantee that his products are the awesome in the world despite the fact that it is false. The sponsor can compare his products and with others and can express that his merchandise is better; notwithstanding, in doing so he can’t express that the contender’s merchandise is bad as this would add up to defamation. No defamation no case arises. Furthermore, in Colgate-Palmolive (India) Limited v Anchor Health & Beauty Care Private Limited[5] the court held the decision considering ‘consumer-interest’ that comparing it with others will give a better competition and a better product but it will confuse the consumer so, it was observed by the Court that puff statements amount to unfair trade practice under the Consumer Protection Act and held that recognition of the right to puff would amount to de-recognition of the rights of the consumer guaranteed under the Consumer Protection Act.

EXAMPLES OF ADVERTISEMENT BECOME “MISLEADING”

• With the havoc of corona virus in the country it becomes easier to deceive consumers in the name of remedy from the same. CCPA issued notice to 14 companies[6] claiming protection from virus and boosting the immunity during pandemic to companies selling water purifier, paints, floor cleaner, apparel, disinfectant, furniture among others.
• Then in November 2020, guidelines were introduced against online gaming from risk associated to audience claiming the involvement of real money.
• A District Consumer Redressal Forum in Kerala recently punished Malayalam film entertainer Anoop Menon and Dhathri Ayurveda for bogus claims relation to Dhathri’s hair cream which ensured hair growth within 6 months of utilization[7].
• The Aurangabad Bench of the Bombay High Court on Wednesday held that deal by ad of any article by addressing it as wonderful and powerful is illegal [Rajendra Ambhore v. union of India].

CONCLUSION

Advertisement without refute fill in as a vehicle for consumer information. To arrive at a correct buying choice for knowing previously the value of an item, ads play a significant and successful part. These advertisements in spite of the fact that reinforce the business interest of an advisor, ought to be directed just when justified by the public good. Mere commercial motive when freedom of exchange and trade is itself a principal right. In any case, this protection can’t be reached out to false or deceiving promotions for what it’s worth in the bigger interest of public that such practices ought to be checked. While deciphering an ad, traders’ plea of absence of mens rea ought not deny the consumer compensation. In comparative to earlier jurisdiction (CPA) presently extended into CCPA and this Act will empower consumer and help them in securing their privileges through its different advised Rules and arrangements like Consumer Protection Councils, Consumer Disputes Redressal Commissions, Mediation, Product Liability and discipline for assembling or offer of items containing adulterant/deceptive merchandise.

Article 19(1)(a) of the Constitution of India ensures the privilege to the right to freedom of speech and expression, which is likewise stretched out to ads. In any case, similar to some other right, this freedom is additionally dependent upon sensible limitations forced by Article 19(2) of the Constitution of India. In Tata Press Ltd v. Mahanagar Telephone Nigam Ltd.[8]  (“Tata Press”) wherein the Supreme Court noticed the privilege of the purchaser as a beneficiary of business discourse by stating “Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of individuals to listen, read and receive the said speech.”, Thus, there ought to be no end of honest information but closing can be permitted only when deception is the likely result of an advertisement.

[1] The times of india 21-5-1993 (new delhi).

[2] Merriam webster 2020

[3] Horlicks Limited  v. Zydus Wellness Products Limited, CS (Comm) 464 of 2019, decided on 20-5-2020.

[4] Reckitt & Colman of India Ltd. v Kiwi T.T.K. Ltd, 63 (1996) D.L.T. 19.

[5] 7 (2008) M.L.J. 1119

[6] Economic times feb/02/21

[7] Bar and bench 5 jan 2021

[8] Tata Press Ltd v. Mahanagar Telephone Nigam Ltd, (1995) 5 SCC 139.