This Articles answers on How Advertising Standards Council of India (ASCI) deals with Misleading Advertisements in India; written by Prachi Mehta Student of MKES College of Law
Abstract
An advertisement is a vital tool for the companies to sell their products and influence the buying behavior of the consumers. In this digital era, we are constantly consumed by these advertisements thus, it becomes essential to show advertisements which are genuine and not misleading. This article talks about misleading advertisements, role of Advertising Standard Council of India in curbing misleading ads along with cases of misleading advertisement amidst Covid-19.
Introduction
A misleading advertisement under Consumer Protection Act, 2019 can be defined as- “misleading advertisement” in relation to any product or service, means an advertisement, which- falsely describes such product or service; or gives a false guarantee to, or is likely to mislead the consumers as to the nature, substance, quantity or quality of such product or service; or conveys an express or implied representation which, if made by the manufacturer or seller or service provider, thereof, would constitute an unfair trade practice; or deliberately conceals important information.”
In the same way as the Consumer Protection Act, provisions related to misleading advertisements and punishment for the offence are also included in various other laws and regulations such as- Drugs and Cosmetics Act, 1940, The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, Food Safety and Standards Act, 2006.
Broadly, there are two categories of misleading advertisements-
The first category of misleading advertisement, which violates the consumer’s right to information and choice. Under this, all non- health related or non-nutrition related advertisements are included that violates a consumer’s right to information and can cause financial loss or mental agony to the consumers. Few examples are: discount related offers, advertisements of vehicles making false claims of its petrol consumption, a face cream falsely claiming to remove wrinkles and educational institutions making false claims of affiliation or employment in its prospectus.
The second category of misleading advertisements includes all health or nutrition related claims which include advertisements selling health cures and drugs of unknown values. This category of misleading advertisement violates right to safety and can have serious effects on health of the consumers. Few examples are: health gadgets of undetermined value and advertisements claiming to increase a person’s height.
Role of Advertising Standards Council of India (ASCI) as a self regulatory body to curb misleading advertisments-
The Advertising Standards Council of India (ASCI) is a self-regulatory and a non-government body which was established in the year 1985. The members of the council are reputed firms of India which includes advertisers, PR agencies, media and advertising agencies and other professionals related to advertising. It was established to ensure all the advertisements to be legal, decent, honest and truthful along with a sense of social responsibility towards the consumers and to the rules of fair competition. The Ministry of Information and Broadcasting in August 2006, issued a notification holding it mandatory for all the TV commercials in India to follow the ASCI codes. This move has made the Advertising Council more effective and considerable.
The main objectives of this self-regulatory body are-
- To ensure the truthfulness and honesty of claims made by the advertisements and to safeguard the consumers against misleading advertisements.
- To ensure that the advertisements are not offensive to general public and indecent in nature.
- To safeguard the consumers against the promotion of products which are considered as hazardous products and which are unacceptable to society at large.
- To ensure fair advertisements so that the consumers be well informed on choices in the market and maintain a fair competition.
If an advertisement contravenes any codes mentioned above, the consumer or even an industry can complain the ASCI. The Council in fact, urges the consumers to report advertisements which are allegedly unfair or misleading in nature. ASCI, on receiving a complaint notifies the advertiser and gives him two weeks to respond. Further, The Advertising Standards Council of India (ASCI) place the complaint and the response given by the advertiser before the Consumer Complaint Council for the decision.
If the ASCI receive no response from the advertiser the Consumer Complaint Council can give an ex-parte decision. If the advertisement is found to be misleading, the Complaint Council can ask the advertiser to modify it or remove the same. In a report of Economic Times, ASCI has investigated complaints against 415 advertisements from December 2018 to January 2019. The Consumer Complaint Council took action against the advertisers after evaluating these advertisements. These impugned commercials belonged to education sector, healthcare sectors, food and beverages sectors, personal care and other categories.
Recently, ASCI during the ongoing Indian Premier League (IPL) had put a diligent surveillance on the liquor brand extensions appearing during the match and registered complaints against eight such advertisements over the past one month, which supposedly were in violation of the ASCI codes. These advertisements were of whisky, beer, and white liquor brands. In all the given cases, ASCI notified the advertisers within 24-48 hours of the same and seek a response.
ASCI’s codes and Guidelines
ASCI’s codes and guidelines regarding the brand extensions are-
- The brand extension of products like liquor, tobacco, etc be considered genuine, it must be registered under an appropriate government authority such as the Food Safety and Standards Authority of India.
- The in-store availability must be at least 10% of that of the leading brand in the category that the product competes, or sales turnover must exceed Rs 5 crore per annum or Rs 1 crore per annum in each state where it is distributed.
- It must have a proper certificate from an independent organization for such turnover and distribution data.
If the advertisement does not comply with the criteria or the data provided is not certified by an independent body, the advertisement is discontinued. Further, it is to be noted that advertisers cannot show advertisements or even hint in the advertisements at products which are prohibited or banned by law.
Misleading Advertisements amidst COVID-19
In the last few months, Covid-19 has become a center of conversation among the people. An advertisement plays an important role to spread awareness and information about the pandemic. However, the advertisers, with a motive to earn more profits are directly or indirectly associating their products to Covid-19 and passing off misleading and false claims in the advertisements. Some instances of misleading advertisements in recent months are-
The Dettol advertisement
In the present case, Hindustan Unilever, one of the major handwash selling company move the court over a DETTOL advertisement by Reckitt Benckiser which was trying to mock the effectiveness of Hindustan Unilever’s product LIFEBUOY soap. With a view to promote washing hands and to prevent the spread of coronavirus, the plaintiff had advertised their LIFEBUOY soap. Subsequently, the defendant company aired an advertisement about its DETTOL handwash which was more effective than a regular soap, which was shown as a red bar soap. Hindustan Unilever contended that the defendant tried to degrade its product (LIFEBUOY) as its red color and shape was recognizable in the advertisement.
The Bombay High Court in the impugned advertisement viewed that the advertisement showed false claims and subsequently, Reckitt Benckiser removed the advertisement in question.
Arihant’s Corona-Resistant Mattress
Recently, an FIR was logged against the Arihant Mattress, a private company for its advertisement in a Gujrati newspaper for ‘anti-corona mattress’. The owner was booked under Section 505(2) of Indian Penal code which covers- Statement conducing to public mischief and under various other sections of Drug Remedies Objectional Act and Disaster Management Act. The said advertisement was totally false and misguiding the people while the country is going through a pandemic.
Hindustan Unilever Hand Sanitizer Advertisement
Under the Drugs and Cosmetics Act, 1940 and Drugs and Cosmetics Rules, 1945; the Drug Controller General of India (DCGI) issued a show cause notice to Hindustan Unilever on its product which claims to boast the immunity and also claiming to prevent Covid-19. It asserts to improve the immunity by using its hand sanitizer which in turn prevents the virus.
According to DCGL, Section 3(b) of Drugs and Cosmetics Act 1940 says, “immunity is a condition of being able to resist a particular disease especially through preventing the development of a pathogenic microorganism or by counteracting the effects of its products, adding that HUL’s claim attracts the given definition.”
Also, Hand sanitizer was licensed under ‘cosmetic’ under the Drug and Cosmetics Act, 1940 but now advertised as a ‘drug’ which was a clear breach of law.
Thus, DCGL contended that Lifebuoy’s ad of hand sanitizer was false and misleading in nature as the product cannot boost immunity against virus.
Conclusion
The big brands, to increase their capital tries to mislead the consumers through ambiguous, false, and unfair advertisements without satisfactory evidence to prove their claims and which manages to give an exaggerated positive view but later turns out to be a negative experience for the consumers. Misleading advertisements affects a consumer financially, mentally and even physically. This negative experience can spread fear among the consumer, especially during the time such as this present pandemic. As advertisements are effective in marketing a product and has a strong impact on people, advertisers acquire a moral duty to practice the code of ethical advertising and should abide by it and for this ASCI plays a major role for consumers to protect them against misleading advertisements.
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